Volume 12 — Federal Cases

Case [by Obadiah R. Herbert against Charles Adams] for the infringement of a patent for an improvement in the making of bedsteads. Plea, general issue.

[This was a libel in rem by Herbert, Tice, and Marvin against the schooner Amanda F. Myrick (Bishop and others, claimants) for wages.]

<p>[This was an action at law by Jasper K. Herbert against Benjamin F. Butler.]</p>

<p>[This was a libel in rem by Isaac Herbert against the schooner James Leakman (Robert Ferdeen, claimant) for breach of a contract of affreightment]</p>

<p>Case No. 6,398.</p> <p>Distress for Rent — Attachment op Goods in Custody op Law.</p> <p>Goods in the officer’s hands under a distress for rent, are liable to attachment at the suit of the same landlord, for the rent not yet due; and may be condemned, although replevied by the tenant after the attachment levied.</p>

[Appeal from the district court of the United .States for the Southern district of New York. [These were libels against the steam-tug J. H. Gautier and the schooner Herbert Man-ton for damages sustained by collision resulting in the total loss of the canal-boat Gettysburg and her cargo. The district court held the tug wholly in fault, the libel against the schooner being dismissed in each case, with costs. Case No. 7,319.]

On August 13th, 1873, certain fuel was furnished by libellant at Sarnia, in the province of Ontario, to the tug Hercules, then owned by one McCarthy, a resident and citizen of Michiga'n. No effort was made to enforce collection of the claim during that season, and on the 19th of January, 1874, the tug was sold to William A. Mills .and Sarah E. Mills, claimants, resident in Detroit, who paid for her $6,000 in cash, taking a mortgage on the barge Eliza, to indemnify them…

This was a libel promoted by Jno. Bramles, a seaman on board of the ship Hercules, for wages on a voyage from Charleston, S. C., to Copenhagen, and thence to Boston. The claimant set up a forfeiture by desertion at Copenhagen.

<p>In bankruptcy.</p>

This was a bill in equity [by Benjamin D. Heriot and others against J.' 'A. Davis and others], describing the complainants as citizens of South Carolina, and the respondent, Davis, as a citizen of Massachusetts, but the two other respondents, Chapman and Wels-man, as not belonging to Massachusetts, but believed to be residents of South Carolina.

<p>Case No. 6,405.</p> <p>BAxxRUPxor — Composition—Proceedings to Set Aside — Delay.</p> <p>A final order in composition was made in December, 1875. The composition was paid. In January, 1878, the court was applied to, by petition, to set aside the composition, by creditors who had received the amount due by it on the ground that the votes of other creditors in favor of the composition had been purchased by the bankrupt, by notes given to them before such votes were given, which notes were after-wards paid, so that they received that money in addition to the amount of the composition. It appearing that the attorney who represented the petitioners in the proceedings for composition, was in possession, before the composition was confirmed, of facts sufficient to put him and them on inquiry as to the matters now alleged, in such wise that testimony might then have been, taken as to such matters, and that the bankrupts had, after carrying out the composition, ■ entered into a new business, with a new partner, and had incurred new debts, to a Targe amount, on the faith of the composition and of its payment, before the proceeding to set aside' the composition was instituted, and that there had been delay in commencing it after an attorney had been employed to commence it,. during which interval the bankrupt had contracted debts, and no notice had, during such' interval, been served on him, the court held that it was too late for the petitioners to raise the question as to the purchase of the votes, and refused the application to set aside the composition, without examining that question. '</p> <p>[Cited in Re Shaw, 9 Fed. 497.]</p> <p>[Cited in Farwell v. Raddin, 129 Mass. 8.]</p>

<p>Case No. 6,406.</p> <p>Salvage — Damage While in Charge of Sal-vors.</p> <p>[For assisting in navigating a ship to port after she got inside the Florida Reefs, with rudder unshipped and rudder pintle and upper gudgeon broken, libelants awarded $800 as a salvage service, and no deduction allowed for striking upon a shoal while in libelants’ charge, where they were free from negligence.]</p> <p>[Cited in The Mount Washington, Case No. 9.887; The Calcutta, Id. 2,298; Curry v. The Lock Goil, Id. 3,495.]</p>

The defendant resided in France, and the solicitor for the plaintiff consented that his answer might be taken and sworn to before a notai^ public, or other person authorized to administer an oath by the laws of France. The answer was taken by the American consul, and the question now was, whether it was properly taken and sworn to within the terms of the agreement

<p>Case Ho. 6,409.</p> <p>Description op Votage — Suit por Wages against Foreign Ship — Desertion — Contracts with Seamen—Quantum Meruit.</p> <p>1. Under the merchant shipping act of England of 1873, the shipping articles need only specify tlie maximum duration of the engagement of a seaman, and the places or parts of the ■world to whieh it does not extend: field, that a specification of the places to which the voyage or engagement might extend, was an implied agreement that it was not to extend to any other, and therefore a sufficient compliance with the act</p> <p>2. A «dirt of admiralty will not decline jurisdiction of a suit by foreign seamen against a foreign vessel to recover wages, where it appears that the voyage has been completed or broken up, or the seamen have been discharged by the wrongful act of the master.</p> <p>S. Semble, that the court will not-decline jurisdiction where it appears the seamen have been discharged with their own consent before the expiration of the voyage, without the payment of wages already earned, or any agreement or understanding concerning them.</p> <p>4. A seaman is bound to stay by the vessel according to his agreement, whether the master takes any means to compel him to do so or not, and therefore where seamen leave a vessel before the completion of the voyage, although with .the knowledge of the master, and upon his promise that they shall not be arrested therefor,, but without his consent, they ate guilty of desertion.</p> <p>5. Contracts with seamen, upon a discharge before completion of voyage, concerning wages already earned, will be set aside or disregarded by courts of admiralty if inequitable.</p> <p>6. Quantum meruit, what seaman entitled to -on.</p> <p>[Cited in The Topsy, 44 Fed. 636.]</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a libel in rem, filed in the district court, by Peter Grant and others, owners of the bark Reindeer, against the steamship Hermann, for a collision between the two vessels. The district court decreed for the libellants, and the claimants appealed to this court.

<p>[Appeal from the district court of the United States for the Southern district of New York.)</p> <p>This was a libel in rem, filed in the district •court, by Robert Latta, as owner of the bark Hermitage, against the cargo of that vessel, ■to recover freight under a charter-party, entered into between the libellant and Messrs. Abranches, Almeida & Co., merchants, for the employment of the vessel on a trading voyage from the port of New York to the west coast of Africa, and back to New York, with the privilege of continuing the voyage for a year. The owner engaged to keep the vessel well fitted, tight and staunch, and provided with every requisite necessary for such trading voyage, excepting captain, crew and provisions, and that the whole vessel (with the exception of the cabin, the deck, and necessary room for the accommodation of •the crew and stowage of sails and cables) should be at the sole use and disposal of the •charterers; and that no goods or merchandise should be laden on board otherwise than from them. The owner also bound himself to receive on board the vessel, during the voyage, all such lawful goods and merchandise as the charterers might think proper to ship. The charterers engaged, on their part, to provide the vessel at all times sufficient cargo for ballast, and to pay for charter or freight, ■during the voyage, $450 per month, and all foreign and domestic port charges, &c., &c., payable $800 at the expiration of every four months, in New York, and in full on the discharge of the vessel. The charter was to •commence when the vessel was in her berth for loading and reported to the charterers, And was to cease when the vessel should have returned and discharged her cargo in New York. For the fulfilment of the several stipulations each party bound himself to the oth•er, the one, the ship, freight and tackle, the •other, the merchandise to be laden on board. The cargo was put on board of the vessel in New York, by the charterers, preparatory to the voyage, but, before she started on her voyage, a question arose in respect to the rights of the charterers under the charter, the latter claiming the use of the cabin for the accommodation of passengers to be re•ceived on board, which was refused by the •owner. Thereupon the charterers commenced taking out the cargo and refused to fulfil the •charter-party. The libel was filed to recover freight for the use of the vessel, and damages for the non-fulfilment of the charter-party. The claimants excepted to the libel, and the district court sustained the exception, .and dismissed the libel. The libellant appealed to this court.</p>

The libellants demanded a' balance of their contract wages for the voyage from Baltimore to Acapulco, thence to Callao, the Chin-cha Islands, Gibraltar, and Valencia; two months’ wages for their discharge at Valencia, and a very large sum for alleged short allowance of bread and meat during a considerable part of the fifteen months of the voyage.

[Appeal from the district court of the United States for the Eastern district of Pennsylvania, [In admiralty. Suit by Henry Hern against • the steamer Anthracite.]

<p>Case No. 6,413.</p> <p>Pkize — Foreign Vessels.</p> <p>The district courts of the United States will not assume jurisdiction of prize matters of foreign nations occurring.upon the high seas fla-grante bello.</p>

This was an action [by Francisco Hernandez and Juan Pedro Hernandez against the New York Mutual Insurance Company] on a policy of marine insurance. The facts in the case differed from those in the case of the same plaintiffs against the Sim Mutual Insurance Company. [Case No. 6,415] in particulars wholly unimportant.

<p>Case . No. 6,415.</p> <p>Marine Insurance — Interpretation op Power —Written Words and Printed Ones.</p> <p>1. In this case, which was a suit on a policy of marine insurance on boxes of lemons, a valuation of the lemons, by the policy, at so much per box, was held, not to make the insurance an insurance on each box of the lemons, when it was otherwise a single contract of insurance on the ■entire number of boxes of lemons named in the ¡policy, and not an insurance against the loss of -any portion of the boxes less than the whole.</p> <p>.[Cited in Hernandez v. New York Mut. Ins. Co., Case No. 6.414; Neidlinger v. Insurance Co. of North America, Id. 10,086; New York Cent. &■ H. R. R. Co. v. British & Foreign Marine Ins. Co., 58 Fed. 918.]</p> <p>.'[Cited in Haenschen t. Franklin Ins. Co., 67 Mo. 160.]</p> <p>2. The ease of Newlin v. Insurance Co., 20 Fa. St. 312, cited and approved.</p> <p>3. All the words of a policy, the written ones and the printed ones, must be taken together, and, where there is a contradiction between •them, the former must control.</p> <p>4. The printed words of a policy, insuring against loss of the goods insured, “or any part ■thereof,” commented on. Those printed words •do not control the printed words in the mem•orandum clause, “free from average, unless -general.”</p> <p>N [Cited in Pearse v. Quebec S. S. Co., 24 Fed. 287.]</p> <p>[See Case No. 6,414.]</p>

This case came up on exception to a commissioner’s report. The suit was brought by Isaac Pratt, Jr., and others, owners of the bark Alma against the bark Heroine, to recover the damages occasioned by a collision, between the two vessels. The court decided in-favor of the libellants, and referred it to a commissioner to ascertain the damages.

[Appeal from the district court of the United States for the Southern district-of New York.] This was a libel in rein, filed in the district court, by the owners of the brig Almore against the barque Heroine, to recover for the damages caused to the brig, by a collision which took place on the morning of the 21st of November, 1865, about 3% o’clock a. m., some sixty or eighty miles southerly from Montauk Point, between the barque and the brig.

[Appeal from the district court of the United States for the Southern district of Illinois.] Petition of several creditors of the bank•rupt [August Herpich] for a review of an order of the district court, in refusing to allow them a preference.

<p>Case No. 6,419.</p> <p>Bankruptcy — Application to Annul Discharge.</p> <p>When a certificate' of discharge was duly granted to a bankrupt, and within the limited term of two years two creditors, whose debt was provable against the said bankrupt’s estate, applied to have his discharge annulled and set aside, on the ground that he had wilfully sworn falsely in his affidavit annexed to his schedules of creditors and liabilities, in that, having knowledge of the residence of said creditors and his liability to 1hem. he did not include in his schedules the names of said creditors, or their claim. Held, that the court finding the act as charged proven, and that the same was a particular fact concerning the debts, and that the creditors had no knowledge of the commission of said act until after the granting of the discharge, judgment must be given in favor of the creditors: and the discharge is therefore set aside and annulled.</p>

<p>In bankruptcy.</p>

<p>Case No. 6,421.</p> <p>Bankrdftct — Security for Debt — Proof for-Deficiency — Valuation of Security.</p> <p>1. A creditor of the bankrupts, holding security by way of mortgage upon real estate, obtained leave of the bankrupt court to foreclose his mortgage in a state court, sold the real estate under the decree of foreclosure, and proved his judgment for deficiency on the sale as a claim against the estate. On re-examination of the claim, held, that he could not prove for his-deficiency; that if he desired to do so, he should have taken the necessary steps to obtain a valuation of his security in the manner prescribed by section 5075.</p> <p>[Cited in Re Miller, Case No. 9.555: Bradley v. Adams Express Co., 3 Fed. 897; Re-Lotchwortli, 18 Fed. 823.]</p> <p>2. The ordinary order granting leave to foreclose a mortgage upon the bankrupt’s property, cannot be construed as directing that the value of the creditor’s security be ascertained by a sale under a decree of foreclosure.</p>

[This was a suit for infringement by James W. Herring and others against William G. Gage and others. An interlocutory decree was entered for the plaintiffs, and the cause referred to a master for an accounting. Case No. 6,424.]

<p>Case No. 6,424.</p> <p>Patents — Improvement in Cooling and Dkyiso Meal — Reissue —Combination op Fewek Elements — Novelty — Rejected Application as Evidence op Use.</p> <p>1. The first claim of reissued letters patent granted to John Deuchfield, January 16th, 1872, for an “improvement in cooling and drying meal,” and extended. April 17th, 1872, for seven years from April 20th, 1872, (the original patent having been granted to said Deuchfield April 20th, 1858), namely, “The arrangement and combination of the suction fan, G, and the spout, I, with the meal-chest, D, receiving the meal from the grinding stones, and provided with a conveyor shaft, F, and elevator F', substantially as and for the purpose set forth,” is not subject to the objection that it is for a different invention from that for which the original patent was issued, although the original patent claimed only a combination which embraced the elements composing the combination claimed in said first claim with other elements.</p> <p>[Cited in Kerosene Lamp Heater Co. v. Lit-tell, Case No. 7.724; Christman v. Rumsey, Id. 2,704; Blackman v. Hibbler, Id. 1,471; Atwood v. Portland Co., 10 Fed. 287; Big-nall v. Harvey, 4 Fed. 334; Wilson v. Coon, 6 Fed. 620; Smith v. Merriam, Id. 718; Dederick v. Cassell, 9 Fed. 308; Gage v. Herring, 107 U. S. 641, 2 Sup. Ct. 820.]</p> <p>2. The combination of machinery for cooling meal, in the process of converting grain into flour, with machinery for preventing the waste of meal, constitutes a patentable combination, and not a mere aggregation.</p> <p>[Cited in Johnson v. Flushing & N. R. Co., Case No. 7,384.]</p> <p>3. A patent for a combination of old elements may be reissued for a combination of fewer elements than were contained in the combination originally claimed.</p> <p>[Cited in Hoffman v. Young, 2 Fed. 77.]</p> <p>4. The decision in Gill v. Wells, 22 Wall. [89 U, S.] 11, explained.</p> <p>5. A patent, to be overthrown on the question of novelty, must be overthrown by clear and satisfactory proof.</p> <p>[Cited in Kittle v. Hall. 29 Fed. 514.]</p> <p>6. A rejected application for a patent is not evidence that the thing described was ever used, nor is such description a patent or a publication, within the statute.</p> <p>[See Case No. 6,422, and note.</p> <p>[For another case involving this patent, see’ Bignall v. Harvey, 4 Fed. 334.]</p>

[In bankruptcy. In the matter of Adolph B. Herrman and Herman Herrman.] By I. T. WILLIAMS, Register., I, the undersigned, one of the registers of this honorable court, do respectfully certify that, upon the first meeting of creditors, I proceeded to take the votes of all the creditors, reserving, by consent of the meeting, all ■objections until the close of the voting, and also the right to strike out the votes of those whose proofs should be postponed.

<p>Case No. 6,427.</p> <p>Seamen — Wages—Entry in Log-Book — EviDENCE.</p> <p>The entry in the log-book according to the act of congress was defective, as to the point of .this man’s leaving the ship. But a partial forfeiture of wages was decreed, from other evidence.</p> <p>[Cited in The Martha, Case No. 0,144; Knagg v. Goldsmith, Id. 7,872.]</p>

This was a bill praying for injunction to restrain the defendant, who was superintendent of the Freedmen’s Bureau, from enforcing, against the personal estate of the plaintiff’s testator, a judgment rendered by the defendant against plaintiff’s testator, a white citizen, in favor of a freedman.

<p>' [This was a. libel In rem by Albert Hersey, owner of the sloop Quincy, against the steamer North America, for collision.]</p>

By JOSEPH MASON, Register: The bankrupt [J. W. Hershman] has applied for his discharge and passed his final examination which is herewith forwarded. His petition was filed March 11th, 1870.

This was an action [by Theodore Hertz and others] to recover back an excess of duties, and a penalty of 20 per cent., exacted by the defendant [Hugh Maxwell], as collector of the port of New York, on several importations of Westphalia velvets, in the year 1850.

<p>Case No. 6,433.</p> <p>Bankruptcy — Proof of Debt — Statute of Limitations.</p> <p>A debt against which the statute of limitations has run, but which is included in the debt- or’s schedules, is provable in bankruptcy.</p> <p>[In bankruptcy. In the matter of Solomon Hertzog.]</p>

<p>Case No. 6,434.</p> <p>Removal or Cause from State Court—Foreign Citizenship—Nominal Parties.</p> <p>1. A part of a controversy only cannot be removed, but the case must be so. removed that it can be wholly determined.</p> <p>2. Foreign citizens, where they do not constitute the entire plaintiff or defendant cannot remove a suit, as the suits contemplated by the act of March 3, 1875 [18 Stat. 4tÓ], are those between citizens of one of the states of the Union on one side, and foreign states, citizens or subjects on the other.</p> <p>3. Where parties are merely nominal and have no actual interest then their citizenship will not affect the question of removal.</p> <p>[NOTE. Subsequently, April 6, 1878, the "Union Trust Company filed a petition in the state court for the removal of the cause to the federal court, with the usual allegations to give jurisdiction. An order was accordingly made, a bond filed, and the federal court took jurisdiction without objection. At the expiration of 18 months the complainant made a motion to remand the case to the state court, upon the ground of irregularity in the bond, and for certain other reasons. The motion was denied. 3 Fed. 707. The causes were then referred to ¡a special commissioner to take testimony and report his conclusions of law and fact. Exceptions were filed to this report, and, after argument by counsel, certain orders were made by the court. 28 Fed. 169.]</p>

<p>Case No. 6,435.</p> <p>Bottomry Bond — Fraudulent Acquittance— "Waiver — Purchaser—Notice.</p> <p>1.Oakley advanced money, at New Tork, on bottomry, for the repairs of the schooner Isabella (afterwards Rosamond); of Port au Prince; the bond was dated 16 November, 1829, and payable sixty days after the'arrival of the vessel at Port au Prince, where she arrived on the 12th •of December; 1829; the title to her, at the time of the bottomry, was, according to her papers, vested in Dupesne, a merchant of Port au Prince, father-in-law of R. A. Windsor, the principal of the firm of Windsor & Co.; Oakley sent the bottomry-bond to Windsor & Co. for collection; supposing them to be the charterers; •and they, on the 10th of January, 1830,endorsed on the bond the following acquittance: “We hereby acquit Messrs. L. Dupesne & Co., owners of the schooner Isabella, as well as the said ■schooner, collectively or individually, of all liability or responsibility that might arise from this bottomry-bond, which, being entrusted to ■us by Mr. Oakley, we now cancel and annul, acknowledging ourselves to be the sole debtors to Mr. Oakley of the amount of disbursements ■paid by him on the schooner in New York, the said amount being, according to agreement, entered to our own account:” prior to the execution of this acquittance, a letter dated 31 December, 1829. had been despatched by Windsor & Co., to Oakley, stating that they were the ■owners of the schooner, and that his advances on her account would be promptly remitted by them: Oakley, not knowing of the above ac-■quittanee, brought suit in the Haytien court, ¡against Windsor & Co., and obtained judgment on the 14 September, 1830, on an account, in •which the amount of the bottomry-bond was included. On the 30 December. 1830, Herwig (the claimant of the vessel) purchased her from Dupesne, who exhibited to him the bottomry-bond, with the acquittance of Windsor & Co. written upon it: at the time he made this purchase, Herwig was acquainted with the fact ■of the judgment recovered by Oakley against Windsor & Co., and that, notwithstanding this judgment, and the acquittance written on the bond, Oakley claimed his lien on the vessel un•der his bottomry-bond, as still subsisting. No evidence was offered by Herwig to prove that he paid full value for the schooner, and immediately after the purchase he changed her name to “Rosamond,” and sent her to a port of the United States to which she had not been accustomed to trade: Windsor & Co. stopped payment in the month of September preceding the sale to Herwig. On a libel filed by Oakley, to enforce his bottomry-lien: Held, that the acquittance of Windsor & Co. was a fraud upon the libel-lant, and a mere nullity, and did not in any degree impair the security of the bottomry-bond.</p> <p>2. The suit brought and judgment recovered by Oakley in Hayti, being in ignorance of the facts constituting the fraud, did not amount to a waiver of the bond. But it would have amounted to a waiver, if it had been done with a knowledge of all the facts.</p> <p>3. Herwig could not hold the vessel discharged from the lien of the bond, as he was a purchaser with notice of Oakley’s claim. His opinion as to the validity of that claim, did not alter his predicament; he had notice that Oakley made the claim, and having this notice, he bought at his peril, and the property in his hands was bound to the same extent and in the same manner as it was in the hands of the person from whom he purchased.</p>

<p>[This was a libel by William Hessian and •others against the steamboat Edward Howard, for salvage.]</p>

<p>Case No. 6,437.</p> <p>Bankruptcy — Dower — Exemptions under Acts op North Carolina.</p> <p>1. The widow of a bankrupt, where petition in bankruptcy was filed after the act passed by the legislature of North Carolina, repealing the statutory provision and restoring the common law right of dower, the bankrupt dying after the issuing of the warrant in bankruptcy, is entitled to dower in the land owned by the bankrupt at the time of the filing of his petition.</p> <p>[Cited-in Re McKenna, 9 Fed. 34.]</p> <p>2. The act referred to repealed the statutory provision in regard to dower, which in effect restored eo instanti the - common law.</p> <p>3. The legislature by that act attempted to create additional exemptions to those theretofore allowed by law; those exemptions are void as to creditors whose debts were contracted previous to the passage of the act</p> <p>4. The widow of a bankrupt is- not entitled to the personal property exempted by the provisions of the fourteenth section of the act of eighteen hundred and sixtv-seven, nor is the assignee in bankruptcy. No title to exempt' property passes to the assignee by the assignment; it remains in the bankrupt; at his death it passes to his legal representatives.</p>

<p>■ [In review of the action of the district court of the United States for the Northern district of Georgia.]</p> <p>In bankruptcy.</p>

<p>Case No. 6,439.</p> <p>Prize — Violation op Blockade.</p> <p>Vessel and cargo condemned as enemy property, and for a violation of the blockade.</p>

<p>Case No. 6,440.</p> <p>Bankruptct — Decree—Contest—Fraudulent ■Preference — Examination.</p> <p>1. In the case of a petition in bankruptcy, in invitum, the alleged bankrupt did not appear and contest the right of the petitioner to a decree; but certain of his creditors to whom he had made conveyances (alleged in the said petition to be fraudulent) appeared to contest the decree in their own behalf, denying that the petitioner had any debt, and praying that the alleged bankrupt might be subjected to an examination on that point. Held, that the creditors alleged to have been fraudulently preferred, had a right to appear and contest the facts asserted in the original petition. See Dutton v. Freeman [Case No. 4,210].</p> <p>[Cited in Be Thomas, Case No. 13,891.]</p> <p>2. The alleged bankrupt might properly be subjected to an examination in relation to his indebtedness to the petitioning creditor.</p>

<p>Case No. 6,441.</p> <p>Bankruptcy — Prior Suit in State Court — Abatement — Power over Propertt in Hands of Assignee.</p> <p>1. A suit commenced in a state court before bankruptcy, in which the title to the property surrendered by the bankrupt is in controversy, will not be abated by the bankrupt proceedings.</p> <p>2. A state court cannot, by its process, take property surrendered by a bankrupt, from the possession of the assignee in bankruptcy.</p> <p>[Cited in Hudson v. Schwab, Case No. 6,835; Adams v. Crittenden, 17 Eed. 45.]</p> <p>[See Oases Nos. 18,138 and 18,139.]</p>

[This was a writ of habeas corpus to obtain the release of Hewitt and Mcllwaine from imprisonment under sentence of a military commission.]

<p>Case 3STo. 6,443.</p> <p>Constitutional Law — Obligation op Contbact —Violation—Chabteb—Exemption from Taxation.</p> <p>1. The cases decided by the supreme court of the United States on the question as to when a state legislature, having granted, by a statute, immunity from taxation, can annul such grant, by repealing the statute, examined and applied.</p> <p>[Cited in Pennsylvania R. Co. v. Bowers, 124 Pa. St. 192, 16 Atl. 836.]</p> <p>2. The legislature of New York, by an act passed April 5, 1866 (Laws 1866, c. 398), provided, that the property of the New York and Oswego Midland Railroad Company, a corporation formed under the general railroad law of New York, should be exempt from taxation until a certain event should happen, but for a term of not exceeding ten years. On the 29th of April, 1874,.and, as was alleged, before such event had happened, the legislature passed an act (Laws 1874, c. 296) subjecting the property of the corporation to taxation for the future: Held, that the other provisions found in the act of 1866 constituted amendments of the charter of the corporation.</p> <p>3. The provisions of that act, taken together, including the provision for exemption from- taxation, constituted a contract, and one and the same contract.</p> <p>4. The provision for exemption from taxation could not, as against the corporation and its stockholders, be abrogated by the state, without impairing the obligation of the contract, unless-the right so to do was reserved by the state, as a part of the same contract.</p> <p>5. By reservations in the constitution and statutes of the state, the legislature had the right to amend the charter of the corporation, by repealing such exemption from taxation.</p> <p>[Cited in Ex parte Chamberlain, 55 Fed. 706.]</p> <p>[NOTE. Subsequently, upon foreclosure proceedings being brought against certain property owned by tire New York and Oswego Midland Railroad Company, receivers were appointed. These receivers applied for injunctions to restrain the tax collectors of certain towns from proceeding to interfere with said property by selling it under warrants to satisfy certain state taxes. The applications were denied. Case No. 13,405. In Case No. 13,406, the court made an order of distribution of the proceeds of the mortgaged railroad and its property.</p>

On the return day of the order to show cause, March 24th, 1873, the debtor [Prank Heydette] appeared by attorney, and presented and filed the following paper, entitled in this matter: “To the Clerk of Said District: Please enter a denial of bankruptcy for said Heydette, and a demand for a trial by jury in said cause.

This was a bill in equity, filed by the complainants [Henry W. Hey dock and others], merchants, in the city of New York, against John T. Stanhope, William H. Cranston, Jacob Weaver, and Sarah H. Weaver, citizens of Rhode Island.

<p>[This was an action at law by Herman Heye against George H. Lieman for a balance of account].</p>

In this case, all the creditors of the petitioner [Julius Heys], some eight or ten in number, were foreigners residing in Germany. On the return day named in the order of reference, the petitioner requested the register to fix a' day twenty days from such return day, as the day for the first meeting of creditors.

This is a petition, under the second section ■of the bankrupt act, to review and reverse an order of the district court, “that the bankrupt shall select as exempt such property as he may choose, not to exceed in the aggregate the sum of $2,000, out of any personal property belonging to his estate.” The bankrupt excepted to so much of the order as limited his claim to exempted property to the sum ef $2,000.

<p>Case No. 6,449.</p> <p>Mabitime Lien — Lien by State Law —What is a Vessel.</p> <p>-1. A floating elevator used in the harbor of New York was libelled to recover a bill for repairs, and it was set up in defence, 1st, that she was not a vessel and therefore no maritime lien could attach; and 2nd, that the law of the state of New York respecting liens upon vessels does not create a lien that can he enforced in the admiralty court: Held, that the construction li-belled being a canal-boat upon which had been built an elevating apparatus for hoisting grain, although not enrolled or licensed, without motive power of its own or capacity for cargo, except the permanent cargo of its elevator, was, nevertheless, a vessel and a subject of maritime lien.</p> <p>[Cited in The Wilmington, 48 Fed. 567; The Alabama. 19 Fed. 547, 22 Fed. 451; The Ella B., 24 Fed. 508; Ruddiman v. A Scow Platform, 38 Fed. 158; Aitheson v. The Endless Chain Dredge, 40 Fed. 254; Sea-brook v. Raft of Railroad Cross-Ties, Id. 597; The City of Pittsburgh, 45 Fed. 702; The Public Bath No. 13, 61 Fed. 693.)</p> <p>2. The second defence was not tenable since the decision of the circuit court for the Second circuit in the case of The Ella M. Stevens [The John Farron, Case No. 7,341). .The libellant was therefore entitled to recover his claim.</p>

<p>Case No. 6,449a.</p> <p>Life Insurance — Suicide—Insanity—Burden of Proof — Challenge to Juror.</p> <p>[This was an action at law by Hiatt,1 administrator, etc., against the Mutual Life Insurance Company of New York.] The defense was suicide, to which the plaintiff replied, insanity.</p> <p>[Cited in Houston & T. C. Ry. Co. v. Terrell (Tex. Sup.) 7 S. W. 672, to the point as stated above in paragraph 1.]</p> <p>[In 2 Dill. 572, this case is published as a note to Wilkinson v. Union Mut. Life Ins. Co., Case No. 17,676.]</p>

<p>[Appeal from the district court of the United States for the Southern district of New York.</p> <p>[Libels were filed against the bark Hiawatha and the schooner Crenshaw for violations of the blockade. The district court entered decrees of condemnation against both vessels and their cargoes (Case No. 6,451), and the claimants of both vessels appeal.]</p>

<p>Case No. 6,461.</p> <p>Prize — Blockade—Violation of — Notice of.</p> <p>1. The act of July 13, 1861 (12 Stat. 255), ■“further to provide for the collection of duties -on imports and for other purposes,” did not rescind the prior proceedings of the president in ¡authorizing acts of war by the United States, or in establishing blockades of the enemy’s ports, -or make void captures previously made for violations of such blockades.</p> <p>2. The act of August 6, 1861 (12 Stat. 319), •“to confiscate property used for insurrectionary purposes,” is not to be regarded as a legislative •determination that a vessel belonging to a citizen of a state in insurrection was not, before the passage of that act, confiscable merely as the .property of an insurrectionist or rebel, without -an enactment of congress to that end.</p> <p>3. The pleadings in prize cases should be simple, direct, and free from technicalities.</p> <p>4. The district courts of the United States have exclusive jurisdiction in prize cases, without restriction to cases of seizures within their ■territorial dimensions or on the high seas.</p> <p>5. The existing war between the United States and the rebels is a defensive war on the part of the former. No formal declaration of war by the president whs necessary to render lawful the means adopted by him to repel the warlike measures of the enemy.</p> <p>6. A blockade of the enemy’s ports is as lawful a means of war, in civil warfare, as it is in a war between nations foreign to each other.</p> <p>7. Under the law of nations, the rights incident to a war waged by a government to subdue an insurrection or revolt of its own subjects or citzens are the same, in regard to neutral powers, as if the hostilities were carried on between independent nations.</p> <p>8. Under the proclamation of blockade, of April 19, 1861, it is not necessary to the lawfulness of the capture of the vessel seized for violating the blockade' that a warning should have been previously indorsed on her register, where, at the time of capture, she had entered into or escaped from the blockaded port, or possessed knowledge or notice of the blockade.</p> <p>9. Citizens of the United States levying war against the government of the United States are enemies, and their property captured at sea is subject to confiscation. Persons abiding within the authority of such enemies become enemies because of their residence, without regard to their private sentiments, or the locality of the place of their property.</p> <p>10. A notice of a blockade, to the officials of a neutral government, is a sufficient notice of it to the subject of such government.</p> <p>11. The act of egress is as culpable as the act of ingress, when done in fraud of a-blockade.</p> <p>12. On notice of a blockade, á neutral vessel has a right to withdraw from the blockaded port, with all the cargo honestly laden on board before the commencement of the blockade.</p> <p>13. The acts of a master in breach of a blockade affect the cargo equally with the vessel, if the cargo is laden on board after the blockade has become effective as to the vessel.</p> <p>14. A warning on the register of a vessel is not necessary to establish notice of a blockade, where actual notice of it to the master or owner is satisfactorily made out other wise.</p> <p>The decree in this case was affirmed by the circuit court, on appeal, November 20, 1861 [Case No. 6,450]. The decree of the circuit court was affirmed, on appeal, by the" supreme court, 2 Black [67 U. S.] 635, 682, except as to the thirty tierces of tobacco strips claimed by Irvin & Co. [See Case No. 6,450, note.]</p>

<p>Case Ho. 6,452.</p> <p>Pbizb Property — Sale op, Pendente Lite,</p> <p>1. In this case, after an affirmance by this court of the decree of the district court condemning the vessel and cargo, and the taking of an appeal to the supreme court by the claimants, this court, on the application of the prize commissioners, and on proof tint tne cargo, consisting of tobacco, was in a perishing condition, ordered it to be sold.</p> <p>2. The provisions of the act of March 25, 1862 (12 Stat. 374). in regard to the sale of prize property, pendente lite, commented on.</p> <p>3. That act applies to proceedings in this court as well as in .the district court.</p> <p>4. The practice under that act prescribed and regulated.</p> <p>[The decree of the circuit court was affirmed by the supreme court on appeal. 2 Black (67 U. S.) 635. See note at end of Case No. 6,450.]</p>

<p>Case Ho. 6,453.</p> <p>Maritime Liens — Priority—Materials—Mortgage.</p> <p>1. Priority of lien of domestic material-man over lien of mortgagee,</p> <p>2. The lien under the state law of a material-man for repairs has priority over that of a mortgagee under a prior mortgage duly recorded.</p> <p>[Cited in The El. A. Barnard, 2 Fed. 722; The Canada, 7 Fed. 735; The J. E. Bum-bell, 148 U. S. 19, 13 Sup. Ct 503.]</p>

<p>Case No. 6,454.</p> <p>Colusión — Tug and Schoonee — Holding Course.</p> <p>A ship, in tow of a tug, on a hawser, was going to sea from the port of New York. When below the Narrows, they met a schooner bound in, comiug on a course which would have carried her to the west of them, the wind being from the north of west. When the vessels were near each other, the schooner luffed up into the wind, and, missing stays, fell stern foremost across the hawser, and was struck by the stem of the ship, which, as soon as the manoeuvre of the schooner was seen, had starboarded her helm, the tug having at the same time stopped: Meld, that the schooner was solely responsible for the collision.</p>

The libellants in this case were defendants in the case of U. S. v. Givings [Case No. 15,-212]. Immediately after their acquittal, Davidson and twelve others of the seamen promoted a libel in rem, in a cause of subtraction of wages, against the Hibernia.

<p>In bankruptcy.</p>

The Wyandot Indians, formerly numerous and powerful, while the French and English were contending for the domination of the continent, emigrated from their homes in Canada, crossed the Detroit river into Michigan, fought their way against all opposing forces along the southern shore of Lake Erie, and finally became permanently located under the protection of the United States in Northern Ohio.

Trespass quaere clausum fregit [by Weston Hicks against Richard Fish]. Plea, that the locus in quo was a highway in Tiverton. Replication, traversing the fact of its being a highway and issue thereon.

<p>Case No. 6,460.</p> <p>Insurance — Perils Insured against — Embezzlement — Competency op Witness.</p> <p>1. Action to recover the amount of three bags of Spanish dollars, which had been taken from the vessel on the voyage, during which she was boarded by the crew of a privateer. — The plaintiff must prove the loss to have occurred, by some one of the perils insured against; but, a loss by embezzlement of the crew, is not included in the policy.</p> <p>2. The nature of the interest, which excludes the examination of a person,'as a witness; and, an examination of the law, in reference to the interest, which excludes a witness.</p> <p>[See note at end of case.] -</p> <p>NOTE. The general rule is, that the objection to a witness, on the ground of interest, goes to his credit, and not to his competency, unless he be directly interested; that is, may be immediately benefited or injured, by the event of the suit; or, unless the verdict to be obtained by his evidence, or given against it, will be evidence for or against him, in another action, in which he may be a party. Any smaller degree of interest, as that he may possibly be liable to an action, in a certain event; or, that the verdict may influence the jury in his own case, being similar; does not affect his competency. The admission of a person, immediately interested in the event of the cause, nay, party to it, from necessity; as the person robbed, in an action against the hundred; the defendant’s wife; oath made on an indictment for robbery, in an action against the husband for a malicious prosecution; are exceptions to the general rule. So, likewise, persons who become interested in the common course of business, and who alone can know the fact; as a servant, who, in the way of business, delivers out goods, though the evidence, whereby he charges the defendant, exonerates himself from his liability to his master. Peake, Ev. 93-101. So in the cases of Martin v. Horrell, 1 Strange, 647, and Salk. 280; depend on the same principle. If not in the usual course of business, he must be released. Oowp. 109. So the objection, on account of interest, may be taken out of the general rule, by a counter interest in him; as, where his interest, in the event of the cause supported by his evidence, is counteracted by an equal or greater interest, that it should be decided otherwise. Peake, Ev. 102. So, if the witness stands indifferent, in point of interest, between the parties; being liable to pay to one or the other; as, if in a suit between A and B, for the recovery of money, paid by A to O, for the use of B, C may be a witness, to prove he received it as agent for B. So the acceptor of a bill of exchange, in an action against the drawer, to prove that he had no effects. 7 Term R. 480, 481, note. Peake, Ev. 102. But, in an action against the master, for the negligence of the servant, the servant is not a witness for his master, unless he is released. For, though he is equally liable to the master, in case of a recovery against him, and to the injured person, if he fail; still, as the master in a former case, may, in the action against the servant, use the verdict to prove the quantum of the damages, though not the facts; this is an interest which renders him incompetent. 2 Lid. Raym. 1411. 4 Term R. 589. Green v. New River Oo. [4 Term R. 589]. In an action on a policy on goods, the master and owner was held incompetent, to prove the ship seaworthy, without a release by plaintiff; because, though this verdict could not be read in evidence, in any action, by or against the owner; yet, the witness, by his testimony, seems to exonerate himself from the action of the owner of the goods, for the want of seaworthiness of the vessel. Peake, 84. So, if the loss stated, be barratry of the master, he cannot be a witness for the defendant, to prove the deviation made with consent of. the owners, unless released by defendant; for, if plaintiff succeeds on the bar-ratry of the master, he is answerable to the underwriter. 1 Esp. 339. For, if the underwriters suffer by the fault of the master, they may maintain an action ex delicto, against the person who subjected them to it.</p> <p>The principle of these cases, seems to militate very strongly against the decision in Ruan v. Gardner [supra], and the present. In the case of actions against the master, for injury suffered by neglect of the servant, the incompetency of the servant to give evidence for the master, without a release, must proceed on the ground, that the success of the master, exonerates the servant from his action; and the verdict, besides, would be evidence of the quantum of injury the master had sustained. It is true, the servant is liable to the action of the same plaintiff; but, he has an interest to get rid of one action, particularly when the verdict may be read against him. This is not like the case of Ilderton v. Atkinson, 7 Term R. 480, or Evans v. Williams, Id. 481, note, or Staples v. Okines, 1 Esp. 332: because, in all those cases, the witness’s liability to one of the parties, was not disputed; and, it was of no consequence to him, to which he paid, or which of the parties succeeded. In the cases of Rotheroe v. Elton, Peake, 117, and Bird v. Thompson, 1 Esp. 339, the liability of the master was disputed. His evidence was to exonerate • himself from the charge of barratry, and having an incompetent vessel; and, consequently, from the claim bf the owner of the goods in one case, if he should fail on account of the unworthiness of the vessel, and of the underwriter in the other, for the barratry, in case the underwriter should be made liable. So in the case in the text. The master was liable, by his bill of lading, to the owner of the 5000 dollars; but, exonerated himself entirely, by proving a loss by capture. It is true, he might be sued by the underwriter, if he was guilty of embezzlement; but not under equal circumstances with the other case; for, I presume, the underwriter would be bound to prove the barratry: whereas, the owner might rely on the bill of lading; and put it upon the master to prove his excuse. Besides, he would be also liable in the cases before mentioned. I doubt -the solidity-of the reason given by Judge Peters; because, if the plaintiff had misconceived his action by stating a loss by capture, I do not see that this would preclude him from suing the master, for a loss by a different cause.</p>

<p>Case No. 6,461.</p> <p>Patent — Infringement—'“ Bottle-Stopper. ”</p> <p>Upon the construction given by the court to letters patent No. 48,300 granted to E. D. Moyer, on June 20th. 1865, for an improved bottle-stopper, the defendants held not to have infringed.</p>

[Appeal by James M. Hicks from a decision of the commissioner of patents in an interference case, in relation to curved back erasers and burnishers, awarding priority of invention to A. G. Shaver.]

Action of assumpsit on a policy of insurance. ' The case was submitted upon an agreed statement of facts.

Hearing on bill and answer. , „ The bill; filed by W. H. Hidell and Dora R. Hidell his wife, in right of said Dora, against the Girard Life Insurance, Annuity… Held: or, at her pleasure, entirely to revoke the same.” On October 27th, 1876, prior to her marriage, she executed and delivered to the defendant the following instrument: “I hereby renew the trust created by the deed of June 24, 1872, recorded in Deed Book J. A. H. No. 269, page 441, for five years from this date.

<p>Case No. 6,465.</p> <p>Collision — Sailing Vessels — Direction or Wind.</p> <p>• The bark Nipoti Accame sailing almost directly before the wind collided with the schooner Cordery, which was to leeward, within two points of “close hauled.” The court held the case to fall within the last clause of the 17th sailing rule prescribed by section 4233, Rev. St., where the language employed is free from ambiguity: “If one of them has the wind aft, the vessel which is to windward shall keep •out of the way of the one which is to leeward."</p> <p>NOTE. Since the foregoing was written my attention has been called to the case of The Spring, 1 L. E. Adm. & Ecc. 99, in which the English sailing rule 12 (prescribed by St. 25 & 26 Viet.), in terms identical with our rule 17, as respects the parts there and here involved, was applied. The wind was S. S. E. The Spring was moving W. by S., and the Constantine N. N. E. Notwithstanding that the Spring was on the port tack, and the Constantine had not the wind directly “aft,” (much less so than had the Nipoti Accame,) the court held her to be within the rule, and therefore responsible for failure to keep out of the Constantine’s way. It is important to observe that in this case the Constantine had the wind almost, if not quite, on her starboard quarter.</p>

On the 21st August, the defendant gave a receipt to plaintiff, for James Watson’s note to Love, for 1350 dollars, endorsed by Love to plaintiff, and for Joseph Watson’s note for 1075 dollars; which the defendant promised to be accountable for to the plaintiff, when requested.

<p>Case No. 6,468.</p> <p>'.Specific Performance — Injunction—Rights of Co-Owners of Vessels.,</p> <p>1. Bill in equity for the specific performance •of a contract for the sale of three-eighths of a ship now being built, • with the right of the purchaser to the command, and for an injunction on the owners of the five-eighths against selling the same except with notice of this contract, and subject to whatever right the plaintiff may have under it, and against appointing any other person as master.</p> <p>2. If the contract gives him any right in the nature of a privilege and preference to the •command of the ship — an obligation, charge, lien, or nexus which follows and adheres to the thing, and qualifies the right of ownership, he is entitled to protection by injunction against •the transfer of the five-eighths of the vessel without notice of his contract and of whatever rights he has under it.</p> <p>3. But whether a preliminary injunction ¡should issue against the appointment of any other person to the command is a question not free from doubt The grounds on which courts of equity take jurisdiction to decree a specific performance of contracts stated. The rights-of co-owners as to possession discussed.</p>

<p>Case No. 6,467.</p> <p>Bower op Attorney — Notary Public.</p> <p>■ Under general order in bankruptcy No. 34, •■adopted April 12th, 1875, a notary public is not authorized to take the acknowledgment of a creditor to a power of attorney to vote for assignee.</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a libel in personam, filed in the district court by the owner of the barque Kanawha, to recover damages for her unreasonable detention at Havana. After a decree in favor of the libellant [Aaron G. Higgins], the respondents appealed to this court.

[This was a libel by N. Poster Higgins and others against Barron C. Watson and others for freight under a charter-party.] The libellants were the owners of the schooner B. S. Johnson, which was chartered on August 6, 1858, to the respondents by her master, for a voyage from two ports in North Carolina to New York, the respondents engaging to provide the vessel with a full cargo of resin and spirits of turpentine in barrels under deck, and with a deck load of resin in…

<p>[In bankruptcy. In the matter of William C. High and William B. Hubbard.]</p>

<p>Case No. 6,476.</p> <p>Maritime Lien under State Law — Waiver— Repairs of Vessel.</p> <p>1. -‘Where the owner of a steamboat agreed to pay by instalments for a boiler to be built for the vessel, the last instalment to be paid by his giving a note at three months from the completion of the boiler, but he did not give the note: Held that, under the lien law of New York (2 Rev. St. 493. §§ 1, 2), the lien of the builder on the vessel for the amount of such last instalment was not displaced by the agreement as to the note.</p> <p>[Cited in Chicago & A. R. Co. v. Union Rolling-Mill Co., 109 U. S. 721, 3 Sup. Ct. 606.]</p> <p>[Cited in Dey v. Anderson, 39 N. J. Law. 203.]</p> <p>2. On the failure of the owner to give the note, the credit ceased, and the demand became immediately due.</p> <p>3. If the note had been given, the lien would have been waived.</p>

Libel by five seamen for wages, claimed to have been earned on a wrecking voyage to the British provinces, in the summer of 1859. The shipping articles showed the wages to have been put down in decimals at twenty-five and eighteen cents per month.

Price was employed as a hand on the-steamer Highland Light, a vessel sailing out of and registered in the port of Baltimore. While navigating waters within the jurisdiction of Maryland, her steam-chimney collapsed and caused the death of Price-Whereupon his widow and son filed their joint libel against the steamer in rem..

[This was an action on an insurance policy by Hight and Handy, administrators, etc., for the estate of J. S. Smith Hunter, against the Continental Life Insurance Company.)

<p>Error to Independence circuit court.</p>

<p>Case No. 6,480.</p> <p>Hypothecation of Vessel — Mortgage — Admiralty Jurisdiction — Seamen’s Wages.</p> <p>1. A hypothecation of a vessel, in the form of a mortgage, ns security' for supplies furnished in a foreign port, may be enforced in rem in the admiralty. The lien created by such hypothecation is not lost by taking other security for the claim.</p> <p>2. In regard to supplies furnished a domestic ship in her own port, courts of admiralty are governed by the law of the place, in determining whether a lien against the vessel exists for such supplies. For this purpose, ports in different states of the United States are foreign to each other.</p> <p>3. A material man cannot maintain an action in personam in admiralty, where a note or other obligation has been taken for the demand.</p> <p>4. Either the owner or the master of a ship ■ may bind her by a direct hypothecation, for repairs or supplies made or furnished in a foreign port, although a note or other obligation is given for the demand.</p> <p>5. A hypothecation in the form of a mortgage is not a bottomry bond, where the creditor neither assumes the risk of a voyage nor reserves marine interest.</p> <p>6. Seamen’s wages take precedence of a hy-pothecation for supplies.</p>

<p>Case No. 6,481.</p> <p>Practice in Bankruptcy — Appearance op Creditors — Variance in Notice to Creditors — Marshal’s Return — Statement op Debts and op Personal Property — Proof op Debt.</p> <p>1. At the first meeting of a bankrupt’s creditors, an attorney appeared for two creditors who had not proved their claims, and filed four objections to the proceedings, viz.: (1) That the name of the bankrupt, as stated in the notice served on them, was William B. Hill; (2) that the petition did not comply, as to the details required to be stated in it, with the eleventh section of the bankruptcy act [of 1867 (14 Stat. 521)]; (3) that the inventory did not state the items of the bankrupt’s personal estate; and (4) that the bankrupt had omitted from his schedule property held by him, or others for his use. The bankrupt moved to strike out these objections, among other reasons, because (1) the creditors had not appeared in person, or by an attorney authorized to practice in the United States district or circuit courts; (2) the creditors had not proved their claims; (3) the proof of service of notice by the marshal was regular and conclusive; (4) the inventory of debts, and of personal property was sufficient, and the register’s certificate that it was so was conclusive. The register did not pass on the questions, because he held that the fourth objection was an “opposition to the bankrupt’s discharge,” which necessitated a reference to the court. He certified them to the court, and adjourned the proceedings. Held, that the adjournment was regular.</p> <p>2. The fourth objection was not an “opposition to the discharge.” Until the bankrupt applies for his discharge, under section 29. no objection to any proceeding can be considered to be such an opposition.</p> <p>3. The variance in the bankrupt’s name in the notice served was not material.</p> <p>4. The marshal’s return as to such service is not conclusive.</p> <p>[Cited in Re Pulver, Case No. 11,466.]</p> <p>5. The statement, in the schedule, of the sum due any creditor, and of the date of the debt or judgment, was sufficient, and any insufficient statement might be made sufficient by amendment.</p> <p>[Cited in Re Heller, Case No. 6,339; Re Blais-dell, Id. 1,488.]</p> <p>6. Schedules giving an inventory of the bankrupt’s personal estate, but failing to set forth the separate items, were defective, but might be amended.</p> <p>7. The objection to the appearance of the creditors by attorney was not tenable.</p> <p>8. No creditor has any right to be heard at the first meeting, either in person or by attorney, in opposition to any of the proceedings, till he has proved his debt.</p> <p>9. The register’s certificate, as to the correctness of the inventory of debts, is not conclusive.</p> <p>10. A creditor who opposes a bankrupt’s discharge on the ground of fraud or concealment, must be required to specify the particular matter of which he complains.</p> <p>[NOTE. A creditor subsequently filed specifications of his objections to the bankrupt’s discharge, which, having been amended (Case No. 6,482), the court, upon the proofs, refused said discharge. Id. 6,483.]</p>

In this case [in the matter of William D. Hill] a.creditor filed specifications of his objections to the bankrupt’s discharge, which, among other objections, stated: “That the said bankrupt, with intent to defraud his creditors, has fraudulently placed his property in the hands of his wife, with intent to prevent it from being reached by his creditors, and applied in satisfaction of their debts, and that his said wife so held his property at the time of filing the petition…

[In bankruptcy. In the matter of William D. Hill.] [In Case No. 6,482 the court had given leave to the creditor to file amended specifications giving the grounds of his opposition to the discharge of the said bankrupt, and in Case No. 6,481 certain preliminary objections to the first meeting of creditors were passed upon.]

<p>Case No. 6,484.</p> <p>Practice— Adjudication — Aot op Bankruptcy.</p> <p>1. A petition in involuntary bankruptcy was filed in January, 1874. A trial was had before the court, and, on the 18th of March. 1874, a memorandum signed with the initials of the judge, was made by him on the petition, directing that an order of adjudication be entered on the first of the two acts of bankruptcy alleged, which was that the debtor had stopped payment of his commercial paper, and did not resume payment of it within fourteen days. No order of adjudication was entered before the passage of the bankruptcy amendment act of June 22. 1874 [18 Stat. 178], when the creditor applied to have the order of adjudication entered nunc pro tunc as of March 18, 1874. Held, that the order could not be so entered.</p> <p>2. To obtain the entry of the adjudication, the creditor must amend the petition, so as to make it conform to the act of June 22, 1874, both as ■to the number of creditors joining in it and the act of bankruptcy.</p>

<p>Case No. 6,485.</p> <p>Involuntabt Bankruptcy — Defective Petition —Amendments</p> <p>This was a case of compulsory bankruptcy, and on the day for showing cause why a decree should not pass, exceptions were taken on the part of the debtors to the sufficiency of the proceedings; some of which were merely formal, and some rested on matters of substance.</p>

Sur demurrer to bill. The bill set forth the following facts: In 1870, Hill mortgaged certain real estate to Bishop and Bonaffon, his joint creditors, as security for their debt. In 1874, Hill mortgaged a portion of the same property, by a deed on its face absolute, to Bishop, as security for another debt due by him to Hill alone. Bishop then took and still held possession. Both debts had been paid.

This was a libel filed by the libellant to recover possession of the yacht Amelia. The yacht was built by the respondent [J. N.] Towns, for one Doncourt. Towns was tobe paid partly in money and partly by another yacht belonging to Doncourt. Doncourt paid him part of the money, and told him where to get the other yacht, and ordered it to be delivered to Towns, but Towns did not take it.

[Appeal from the district court of the United States for tiie Eastern district of Pennsylvania. [This was.a libel by Hill and Wheelton against the schooner Emma Peterson, for salvage.]

[Appeals from the district court of the United States for the Eastern district of Missouri. [Libels by Hill & Conn and others against the Golden Gate, and by Johnson and others-against the Ambassador, to enforce liens for supplies. The libel of Hill & Conn and others was dismissed in the district court (Case No. 6,492), and the various libellants appeal.]

<p>Cáse No. 6,492.</p> <p>Maritime Liens—Enrollment of Vessel—Owners—Charter Party.</p> <p>1.Whether a vessel is a domestic or a foreign vessel depends, subject to some modifications and exceptions, upon the residence of her owners, not upon the port of her enrollment.</p> <p>[Cited in The Mary Bell, Case No. 9.199; City of St. Louis v. Wiggins Perry Co., 11 Wall. (78 U. S.) 431; The Witch .Queen, Case No. 17,916; The George T. Kemp. Id. 5,341; The Rapid Transit, 11 Fed. 329; The Jennie B. Gilkey, 19 Fed. 129.]</p> <p>2. The lien against a vessel, in favor of material men under the general maritime law of the United States, also depends upon the residence of her owners, not upon the port of her enrollment.</p> <p>[Cited in Hill v. The Golden Gate, Case No. 6,491; McAllister v. The Sam Kirkman, Id. 8,658; The Albany, Id. 131; The Norman, (s Fed. 408; Stephenson v. The Francis. 21 Fed. 718; The Cumberland, 30 Fed. 451.]</p> <p>3. When there is a charter party, and by its terms, the charterers are to have exclusive possession, control, and management of the vessel, to appoint the master, run the vessel, and receive the entire profits, they, and not the general owners, are to be deemed the owners, and are alone responsible for damages and contracts.</p> <p>[Cited in The Samuel Marshall. 49 Fed. 757; Id., 4 C. C. A. 385, 54 Fed. 399; Norwegian Steamship Co. v. Washington, 6 C. C. A. 313; 57, Fed. 227.]</p> <p>4. Thus, where a steamboat was owned in Indiana, enrolled in Kentucky, chartered by residents of St. Louis, Missouri, and contracted debts to residents of Missouri; held, that under the general maritime law of the United States, the charterers and the material man both residing in Missouri there was no lien upon the vessel.</p> <p>[Cited in The Pirate, 32 Fed. 489; The Samuel Marshall, 4 C. C. A. 385, 54 Fed. 399.]</p> <p>5. The act of congress, entitled, “An act to provide for recording the conveyances of vessels, and for other purposes,” (9 Lit. & B. Laws, 440); does not extend to charter parties.</p> <p>[The decision of the district court was affirmed by the circuit court in an opinion by Treat, District Judge. Case No. 6,491.]</p>

[This was a bill by Samuel L. Hill against J. T. Houghton for the alleged infringement of letters patent No. 59,603, granted to the complainant November 13,1866.]

This cause came before the court upon exceptions taken to the charge of the judge of the district court upon the first count in the ■declaration, judgment having been entered ' for the defendant upon the other counts.

<p>Case No. 6,497.</p> <p>Promissory Note — Notice to Indorser — Days op Grace.</p> <p>1. A notice of taking ideposition being left at the lodgings of a defendant, without specifying the lodgings, is not sufficient, where the defendant swears he did not receive the notice.</p> <p>2. A note payable without grace, in three months or any other specified time, is not due until the time shall expire; excluding the day the note is dated.</p> <p>3. The usage of the banks in the District of •Columbia, to make a demand on the fourth day of grace, only applies to notes negotiated by the bank.</p> <p>[See Auld v. Mandeville, Case No. 653.] “</p> <p>4. Notes left for collection in the' bank, are •due on the third day of grace under the general commercial usage.</p> <p>5. A notice to an indorser, who is a member ■of the senate or house of representatives of the United States, left in the post-office of the «enate or house, congress being then in session, is not a sufficient service. If, however, the jury shall believe that the notice was duly received, it is sufficient.</p> <p>[Cited in Manchester Bank v. Fellows, 28 N.</p> <p>H. 311; Tterbell v. Jones, 15 Wis. 256.]</p>

<p>Case No. 6,496.</p> <p>Seamen’s Wages — Votare Broken Up.</p> <p>A vessel was run on a reef in a well-known channel, where there was plenty of room, and was lost. The master was a man of experience in the waters, and accounted for the occurrence by his chronometer being wrong. The sailors brought suit against the owner of the vessel, to recover wages for the whole voyage, alleging that the voyage was broken up by fault of the owner. Hdd, that, as it did not appear that the accident was the result of negligence, or incompetency of the master, or that, when the vessel sailed, the chronometer was not a proper one in good order, it could not be held that the voyage was broken up by fault, fraud or neglect of the owner.</p> <p>[Cited in The Wenonah, Case No. 17,412.)</p>

<p>Error to St. Francis circuit court</p>

<p>Case lío. 6,499.</p> <p>Mortgage — Eqditt op Redemption — Merger.</p> <p>1. An equity of redemption, at common law, can not be sold on execution.</p> <p>2. When a mortgagee brings an action on a mortgage bond, obtains judgment, sells the right of redemption, and becomes the purchaser, on the supposition that such an interest can be sold, the equity purchased at the sale merges m the legal estate. And this principle holds equally, whether the purchase extends to the whole or a part of the mortgaged premises.</p> <p>3. It is a general principle, where a greater and a less estate unite in the same person, the latter becomes merged in the former.</p> <p>4. Where a contrary intention is shown by the person holding these interests, this effect may not result from the union of these estates.</p>

This was a libel in admiralty filed by the libellants against the brig Triumph for a balance of wages due them on a voyage from New Orleans to the city of New York. The vessel sailed from New Orleans in the month of March, 1841, and arrived at the port of New York the 0th of May following. The libellants were seamen, and shipped for the voyage and to return.

[Bill in equity to restrain alleged infringement of an exclusive right of the complainants [Wade H. Hill and others] under letters-patent for improvements in printing-presses, granted Edwin Allen Oct 22, 1867 [No. 70,063], Nov. 12, 1867 [No. 70,773], and Feb. 4,1868 [No. 73,943], and for an account.

Bill of foreclosure. The complainant represents himself as a citizen of the state of New York, and as such, claims the jurisdiction of this court. It is charged in the bill that the defendant made and delivered to one J. J. Tallmadge a note, whereby he promised to pay said Tallmadge or bearer, two thousand seven hundred dollars, for value received.

<p>[Motion by Clarissa C. Hiller against Gilbert M. Shattuck to vacate judgment and for a new trial.]</p>

In equity. Bill by [Joel H. Hills] the creditor of a bankrupt to set aside the assignee’s sale of the bankrupt’s estate for fraud and collusion between the assignee and purchaser; and because the notice of sale was insufficient under the act of 1874, c. 390, § 4 [18 Stat. 178]. [The court had previously refused to confirm said sale. Case No. 151). The answer denied the fraud and collusion, and averred that the notice of sale was given in compliance with the act of 1874.

<p>Case No. 6,505.</p> <p>Equity Pleading — Averment op Citizenship— Exceptions. .</p> <p>1.A want of an averment of citizenship if not made in a bill or declaration, or where it is falsely alleged, should be taken advantage of by pleading.</p> <p>2. Unless such an averment be contradicted, it need not be proved on the trial or hearing.</p> <p>3. Where the exception is taken, the court will permit an amendment.</p>

<p>[This was a bill in equity by Miles Hills against James Homton and others.]</p>

<p>This was an action [by William H. Hinck-ley against John M. Byrne, Samuel Crim, Edward F. Beale, M. Myerstein, Deutsche Buc-chendung, F. W. Barkhaus, D. Barkhaus, William Kroning, J. Brewster, S. Haas, Joseph Kohler, F. X. Huber, John Anthes, Hip Hing, Wau Hup, Soo Chung, San Jee, Sam Kee, Abel Guy. John Doe, Richard Roe, John Doe, Jr., Richard Roe, Jr., John Doe, 3, and Richard Roe, 3] to recover possession of a 50-vara lot in San Francisco, on the southwest corner of Sacramento and Kearny .streets, alleged to be worth $300,000. Upon the part of some of the defendants there was a plea in abatement to the' jurisdiction of the court on account of the status of some others of the defendants, to which the plaintiff demurred.</p>

<p>Case No. 6,511.</p> <p>Collision — Converging Courses.</p> <p>[Where one of two vessels upon a converging course commits the fault of luffing instead of keeping away, no damages will be awarded for the consequent collision, where the evidence shows that the other vessel maintained her course, and did not give" way.]</p>

<p>Equity Practice—Parties— Ejectment—Fraud-ulent Conveyance—Depositions—Proof of Marriage—Special Replication.</p> <p>1. "Where an individual is made a party, who is not within the jurisdiction of the court, on filing his answer and disclaiming all interest in the case, the bill may be dismissed as to him and the court may sustain jurisdiction as to the other parties.</p> <p>[Cited in Heriot v. Davis, Case No. 6,404.]</p> <p>[See note at end of case.]</p> <p>2. Where the bill assigns as a reason for not making a person a party, that he is not within the jurisdiction of the court, the court will take cognisance of the cause in certain cases.</p> <p>3. An agreement to admit certain depositions not regularly taken, and between other parties as evidence, extends to the final termination of the cause, though it should be taken to the supreme court and sent down for further proceedings.</p> <p>4. A deed not fraudulent, if procured to be made by a father to his infant son, in payment of a just debt, though the father be embarrassed in his circumstances.</p> <p>5. A purchaser who has notice of such facts as with ordinary diligence, would lead him to a full knowledge of an outstanding equity, is a purchaser with notice.</p> <p>[Cited in Carr v. Hilton, Case No. 2,437.]</p> <p>[Cited in Parker v. Foy, 43 Miss. 260; Great Falls Bank v. Farmington, 4Í N. H. 42; Woods v. Wilson, 37 Pa. St. 380; Janvrin v. .Janvrin, 60 N. H. 173.]</p> <p>6. An instrument of thirty years standing, not impeached, need not be proved by the subscribing witness.</p> <p>7. Marriage proved by general reputation, cohabitation, and the express recognition of the wife in the will of the husband.</p> <p>' NOTE. This case was appealed to the supreme court, and the principles laid down by the circuit court, so far as they regard the merits of the case were sustained; but the decree was reversed on the ground that the matter as to the re-conveyance of the lot by Cummins to Hinde, should have been introduced into the case by the amendment of the bill, and not by special replication. This point was not raised in the circuit court, the replication having been filed with the consent of parties, in fact, and without the knowledge of the court. It does not appear, however, on the record, that special leave was given to file the replication, [The cause was remanded with directions to permit the complainants to amend their bill so as to introduce the matter of the conveyance mentioned.] Vattier v. Hinde, 7 Pet. [32 U. S.] 252.</p> <p>[During the progress of this suit in the circuit court an action of ejectment was brought by the lessee of Vattier v. Thomas S. Hinde and Wife, and a verdict obtained in favor of the plaintiff. Upon a writ of error being taken, the supreme court affirmed the judgment of the circuit court 5 Pet (30 U. S.) 398.]</p>

[Appeal from the district court of the United States for the Northern district of Ohio.] [This was a libel in admiralty by William Hindley against the schooner Wellington.]

[This was a libel for wages, by Hindman against Shaw, master of the brig Diligence.] • A ship had been at a port of delivery; and so far earned her freight. She sailed from Philadelphia on a circuitous voyage, and to return to that port. The seaman had shipped for the voyage. At a port, subsequent to her first delivering port, in Europe, she was found not sea-worthy.

<p>Case No. 6,615.</p> <p>Salvage — Deuei-ict.</p> <p>One half decreed by way of salvage, in case of a vessel found derelict on the high seas.</p> <p>[Cited in Plinn v. Leander, Case No. 4.870.']</p>

<p>[In bankruptcy. In the matter of Joseph N. Hinds, Jacob Allen, Benjamin Allen, and Alvin B. Losee.]</p>

•The summons, in this case, having been returned executed to the last term, and no appearance entered, the plaintiff moved for judgment by default, under the act of assembly of this state of the 20th of March, 1724 (1 Smith’s Laws, 165) referred to in the case of Smith v. Bohn [Case No. 13,015].

Action by a brakeman against the company; the petition charging that the plaintiff, as brakeman. was engaged in coupling cars, and that the engineer in charge of the moving section of the train carelessly backed it with such force and speed as to cause the plaintiff’s hand to be crushed, and that the engineer was incompetent, and the defendant knew it.

<p>Assumpsit on a bill of exchange, drawn at Boston on the 12th of April, 1S19, on the-defendant [Thomas Marean], at Baltimore, for $2000, payable in sixty days to the plaintiff [David Hinkley], (an inhabitant of Boston), and accepted by the defendant at Baltimore on the 17th of April. The declaration alleged a breach by non-payment The principal pleas were founded on the statutes of insolvency of Maryland of 1805 and 1809, whereby the defendant being then an inhabitant of Maryland, and entitled to the benefit of the acts, was, on the 3d of September, 1819, duly discharged and his property assigned. The Maryland acts discharge the contract and “the person, estate, and effects of the insolvent, except any that may after-wards be acquired by gift, descent, or in his own right by bequest, devise, or in any course of distribution;” and the defendant accordingly (averring in one of his pleas, that he had not subsequently acquired any such) prayed in the language of the acts, that his person, estate, and effects, save and except any property, if any there be, after the 3d of September, 1819, by him acquired by gift, &c., may be discharged, and that the plaintiff may be precluded from further prosecuting his said suit and for his costs. To these pleas there was a demurrer and joinder.</p>

The plaintiff, as assignee of a bankrupt, brought an action in the district court of the United States, against Cutler and others, composing the firm of Cutler, McLean & Co., to recover certain sums of money alleged to have been paid to that firm by the bankrupt as a preference.

<p>In bankruptcy.</p>

<p>Some inquiries were made at the bar respecting the apportionment of costs in these cases, which were prize causes, among the several claimants of the ship and cargo.</p>

This was a motion for an attachment ■against George Kretz, and Titus Eldridge his attorney, for a contempt, in disregarding an ■order of this court made in the above-mentioned bankrupt proceedings. The facts were as follows: The petition of the bankrupt [Francis A. Hirsch] was filed in the Eastern district of New York on the 22d day ■of May, 186S, and, upon the same day, the petitioner was declared a bankrupt.

<p>Case No. 6,630.</p> <p>Attorney’s Costs under Section 38 op the Bankruptcy Act.</p> <p>Where attorneys of a voluntary bankrupt presented and proved a claim for legal services in preparing the petition and schedules, and advice in relation to it. and for disbursements: Held, that no part of it was a debt to be paid in full, under the twenty-eighth section of the bankruptcy act (of 1867 (14 Stat. 530)].</p> <p>[Cited in Barnes v. Rettew. Case No. 1,010; Re Comstock. Id. 3.074: Re Jaycox, Id. 7.-239; Re Gies, Id. 5,407; Re Elmendorf, 9-Fed. 546.]</p>

<p>[This was a suit by Frank Hiseock, as-signee, etc., against Mary C. Jaycox and, Frances Green.]</p>

This cause was tried on the defendant’s demurrer to plaintiffs’ petition. IJnder the system of pleading which prevails in Texas, much of the evidence on which plaintiffs relied to sustain their cause was set out in the petition.

This cause was heard upon the motion of plaintiffs [D. G. Hitchcock & Co.) to strike .out certain demurrers, filed by the defendant, to the petition of plaintiffs. At the December term, 1874, the cause had been heard upon demurrers, based on various grounds, filed by the defendant to the petition. The demurrers had been sustained by the circuit court on two grounds, and the petition dismissed. See Hitchcock v. Galveston [Case No. 6,532).

This cause was heard upon the demurrers of the plaintiffs [D. G. Hitchcock & Co.] to several of the answers of the defendant. The substance of the answers demurred to will appear in the opinion of the court

This was a bill by Charles Hitchcock against William E. Rollo, assignee of the Merchants’ Insurance Co., to establish a set-off. This case, in many respects, resembles the case of Drake v. Rollo [Case No. 4,066], immediately preceding. The complainant, on the 15th of May, 1867, borrowed of the insurance company the sum of $20,000, payable in five years, to secure which he gave his notes, secured by mortgage on real estate in Chicago.

<p>Case No. 6,536.</p> <p>The Right of Set-Off in Equity undee the ■ Bankkcpt Law.</p> <p>L The same points decided as in the previous case.</p> <p>2. Where a person borrowed money of an in-</p> <p>surance company, and had taken an assignment of a policy of insurance issued to himself and his partners upon their joint property, the assignment -being made after the insolvency of the company, held on a bill filed by the borrower to set off the' debt due the company for a loss on the policy before the assignment was not allowable. The debts and credits were not mutual, nor.existing in the same right. ;</p> <p>3. Held, further, that the plaintiff, in such a case, should allege and -prove not only that he is the nominal owner of the policy, but that in equity he has a right- to stand in the place-of the parties to whom the policy was issueu.</p> <p>4. Where a person has borrowed money of an insurance company, and is holder of a policy of insurance on which the company is liable to him for a loss on the same, and the company becomes insolvent, with proceedings in insolvency or. bankruptcy imminent, and with the knowledge of these facts he obtained the policy with the purpose of setting off the claim under the policy for the debt he owed the company, held that, the set-off was not allowable under the twenti-. eth section of the bankrupt law [of 1867 (14 Stat. 526)],- notwithstanding the policy might have 'been - assigned to him- before the petition in bankruptcy wás filed.</p> <p>[Cited in Hovey v. Home Ins. Co., Case No. 6,743.1</p> <p>5. To allow the set-off under such circumstances would be a-substantial fraud on the statute, and give an unjust preference to one creditor to the prejudice of other creditors.</p> <p>6. Notwithstanding the two exceptions in' the twentieth section of the bankrupt law, a court of equity is not foreclosed from disallowing a set-off outside of the exceptions if the circumstances show that to permit it would be inequitable.</p> <p>[NOTE. In Drake v. Rollo, Case No. 4.060. it was held that as soon as the- loss occurred the relation of debtor and creditor ensued, and the insured could set off his loss under the policy 'against a claim of the insurance company. See, also, note to Case No. 6,533.]</p>

[This was a suit in equity by Alonzo Hitchcock and others against the B. Shoninger Melodeon Company and others for the infringement of reissued patent No. 3,665.]

[This was a bill in equity, filed to restrain the defendants [Charles M. Tremaine and William B. Tremaine] from infringing letters patent [No. 48,366] for “improvement in tremolo attachment,” granted to R. W. Carpenter, June 27, 1865, assigned to complainants and reissued to them May 18, 1869, and again October 5, 1869 [No. 3.665]. The invention consisted in producing a tremolo by an agitation of the air caused by a .winged fan made to revolve by a spring and corded shaft.

[This was a bill in equity by Alonzo Hitchcock and others against Charles M. Tremaine and William B. Tremaine.] 3 [Exceptions to the master’s report in the case of Hitchcock v. Tremaine [Case No. 6,-53S], The nature of the exceptions is sufficiently set forth in the opinion.]

[Bill in equity by Alonzo Hitchcock and others against Charles M. Tremaine and William B. Tremaine.] 2 [This was a petition by the defendants to stay the entry of a final decree, in the suit Hitchcock v. Tremaine [Case No. 6,538], and for leave to file an amended answer, and to take proof in support thereof, and for a rehearing of the cause.]

<p>[Appeal from the district court of the Unit-' ed States for the district of Maryland.]</p>

At an adjourned third general meeting of creditors, held in said matter, on the 18th day of October, A. D. 1870, before Joseph Mason, register in bankruptcy, a claim of C. C. Selden was presented for proceeds of sale of certain articles sold by the marshal as messenger, and which said claimant alleged had been previously sold to him as part of the lease, good-will and fixtures of a certain store formerly in the occupation of the bankrupt.

Rule to show cause why an injunction to stay waste should not be granted, and why service of the subpoena, upon the attorney of the defendant, in a suit depending against the plaintiff, for slandering his title to the lands in the bill mentioned, should not be considered as a service on Suckley. The case was, that one Broom, being indebted to Hitner, executed a mortgage to him for securing the same, on a certain tract of land the subject of this injunction.

<p>Case No. 6,544.</p> <p>Removal op Suits prom State to National Courts.</p> <p>A suit was pending in the supreme court of California on appeal from the judgment of the district court at the date of the passage of the act of congress of March 3, 1875 (18 Stat. 470], relating to the jurisdiction of the United States circuit court, in which the judgment was reversed and the cause subsequently remanded to the district court for new trial. At the first term of the district court at which a trial could be had after the filing of the remittitur and before any other trial, the suit was removed to the United States circuit court on application of the plaintiff: Held, that the case is within the provisions of sections 2 and 3 of said act of congress, and that it was properly removed.</p> <p>[Cited in Crane v. Reeder, Case No. 3,356; Young v. Andes Ins. Co., Id. 18,151; Meyer v. Delaware R. R. Const. Co., 100 U. S. 473; Hendeeker v. Rosenbaum, 6 Fed. 99; Phoenix Mut. Life Ins. Co. v. Walrath, 16 Fed. 163.]</p> <p>[See note at end of case.]</p> <p>[NOTE. A demurrer was then filed to the bill, and on the hearing thereof the eourt entered an order remanding ease to the state court. This order was affirmed by the supreme eourt. 94 U. S. 4. The supreme eourt of California affirmed a judgment for defendant. 12 Pac. 125. The plaintiff then sued out a writ of error from the supreme court of the United States, and the judgment was affirmed in an opinion by Mr. Chief Justice Waite. 124 U. S. G39, 8 Sup. Ct. 659.]</p>

<p>Case No. 6,545.</p> <p>Bankruptcy — Lien for Rent on Goods Seized bt Marshal — Claim for Use and Occupation.</p> <p>1. A claim of the landlord for rent, for which, by the laws of the state, he had a lien on goods which have been seized by the marshal, is a preferred claim so far as the proceeds of such goods will go.</p> <p>2. A claim by a landlord for use and occupation of premises by the marshal, for keeping and storing the goods, and costs on reference to adjust the amount of claim, are costs of administration, to be paid in full if the assets are sufficient; if not, to be paid pro rata with all other expenses of administration of the same class.</p> <p>3. Costs of a claimant upon a reference to have the claim declared and enforced are to be paid out of the balance remaining after payment of all the expenses of administration.</p> <p>4. The assignee cannot pay a claim for use and occupation of premises without an order of the court, and without ascertaining whether the assets are sufficient to discharge all the expenses-of administration of the same class.</p>

<p>This was an action to recover damages from the defendant [Matthew Nunan] for alleged maltreatment of the plaintiff. The facts of the case are sufficiently stated in the opinion of the court, with the exception of the law of April 4,1870. The act of the legislature of that date, entitled “An act to establish a quarantine for the bay and harbor of San Francisco and sanitary laws for the city and county of San Francisco,” in its second section creates a .board of health for the city and county of San Francisco, consisting of the mayor of the city and county and four physicians residing there, to be appointed by the governor; and in its ninth section provides that the said board of health “shall have general supervision of all matters appertaining to the sanitary condition of said city and county, including the city and county hospital, the county jail, alms-house, industrial school, and all public health institutions provided by the city and county of San Francisco; and full powers are hereby given to said board to adopt such orders and regulations and appoint or discharge such medical attendants and employees as to them seems best to promote the public welfare and not in contravention of any law.” St. 1869-70, 717, § 9. By the thirty-fifth section “all acts .or parts of acts in conflict with this act, or any of its provisions,” are repealed. To the action two defenses were set up by the defendant; the second being a justification of his conduct under an ordinance of the city and county of San Francisco, which is mentioned in the opinion. To the plea setting up this justification the plaintiff demurred, and the case was submitted upon written arguments.</p>

<p>Case No. 6,647.</p> <p>Statute op Limitations — Absence fbom the State — Saving Clause.</p> <p>The Oregon act of December 16, 1853 [Code Or. 1854, p. 372], provided that no action should be maintained by a ward to recover any estate sold by'his guardian under that act, unless the same was commenced within five years after the termination of the guardianship; excepting only that persons out of the state when the cause of action accrued might sue within five years after their return to the state: Held, that the exception or saving clause applied as well to persons who were never in the state as to those who were temporarily absent from it.</p> <p>[See Case No. 6,548.]</p> <p>NOTE. In a similar action to recover possession of real property, brought [by Frederick Elliott against Charles B. Upton] to recover another undivided tenth of the premises described in the above opinion, the ruling of the court was the same. [Case not reported.]</p>

<p>[Bill by W. W. Hobart and others against Charles B. Upton.]</p>

Mr. Hapgood, the bankrupt, was trustee, under a private assignment made by S. Sutton & Co. for the benefit of their creditors. In the course of settling that estate, he sold machinery and other assets, and paid certain charges and privileged debts; and in February, 1S76, he had received $1,500 or thereabouts more than he had paid out.

The relators were tried before the thirty-fifth senatorial district court of this state in the city of Atlanta, for the offense of fornication.

Case stated, wherein Elizabeth T. Hobbs, a citizen of the state of Maine, was plaintiff, and the Western National Bank of Philadelphia, a corporation organized under the laws of the United States, and doing business in the state of Pennsylvania, was defendant, showing the following facts: Adeline T. Kittredge, the owner of certain shares of the capital stock of the corporation defendant, was a resident of. and died in, the state of Illinois in 1S79, having duly made her…

<p>.Case No. 6,553.</p> <p>Justification bt Surett.</p> <p>The affidavit of the surety on an appeal bond, as to his responsibility, where he does not personally appear, is not sufficient; there must be independent evidence of his responsibility.</p>

This was an action brought [by the Hobo-ken Land & Improvement Company against the lighter Sunswick and John Reed, master] to recover the value of some railroad iron, alleged to have been shipped on the lighter at Brooklyn, to be carried to Hacken-sack, N. J., and lost on the passage.

<p>Case No. 6,554.</p> <p>Demurrer — Peeadixg—Oter of Deed.</p> <p>1. A demurrer to the declaration raises the ■question of law, whether the plaintiff, from the facts stated, is entitled to recover.</p> <p>2. In pleading, it is not necessary to state what is merely matter of evidence.</p> <p>3. If a party partially states a deed, which is •defective, or contains matter qualifying the part stated, the defendant may crave oyer of the deed, and set forth the whole, and then demur.</p> <p>[Cited in State v. Peck, 5á Me. 123.]</p>

<p>[This was a bill in equity by Hockholzer and others against Thomas Eager andotbers.]</p>

<p>Case No. 6,565.</p> <p>Bankrupt Act — General Assignments under State Law — Adjudication op Bankruptcy — Collateral Attack:</p> <p>1. A previous voluntary general assignment for the benefit of creditors, made in good faith, and valid under the law of the state where •made, will not be sustained against a valid adjudication of bankruptcy.</p> <p>2. An adjudication made after the return day, but upon petition and appearance, will be sustained in a collateral inquiry.</p> <p>[Cited in Re Bush, Case No. 2,222.]</p> <p>[Cited in Re Bush, Case No. 2,222.]</p>

<p>[This was a libel in admiralty by Elijah St. John Bemis and Asaph S. Bemis against Philander Hodge.]</p>

<p>[Bill in equity by Amelia S: Hodge and Zelia C. Hodge, as administratrixes, etc., of Nehemiah Hodge, against the Hudson River Railroad Company and the New York and Harlem Railroad Company.]</p> <p>3[This was a motion for a provisional injunction, made in each one of two suits, to restrain the infringement of letters patent for an “improvement in the mode of operating brakes for cars,” issued to Nehemiah Hodge, October 2d, 1840 [No. 6,762], reissued to him March 1st, 1S53 [No. 231], and extended to-him September 16th, 1803, for seven years-from October 2d, 1863.]3</p>

<p>In equity. This was a renewal of the motion for a provisional injunction, reported [Case No. 6,559], and which was suspended to allow the plaintiffs [Amelia S. Hodge and Zelia C. Hodge, as administratrices of Nehemiah Hodge] to supply evidence on certain points.</p>

[These were bills in equity to restrain the infringement of letters patent for “improvement in the mode of operating brakes for cars,” granted to Nehemiah Hodge, October 2, 1849 [No. 6,762], reissued March 1, 1853 [No. 231], and extended to him for seven years from October 2, 1863. Abbott L. Hodge claimed as heir at law of Nehemiah Hodge, and as assignee of Zelia C. Hodge, another ■ heir, and Amelia S. Hodge claimed as admin-istratrix of Nehemiah Hodge, and also as heir.

<p>Appeal determined before JOHNSON, SCOTT, and SELDEN, JJ.</p>

<p>Case No. 6,562.</p> <p>Bankruptcy — Service or Order out or Jurisdiction — Rower to Issue Attachment.</p> <p>The defendant was adjudged a bankrupt upon his own petition, and some months thereafter an order of examination was obtained, requiring him to appear before the register having charge of the case, at his office in St. Paul, Minnesota. The order was served on the bank.rupt at the city of Chicago, Illinois. He failed to appear, and a motion was made for an attachment and warrant of arrest to bring him before the court to answer for a contempt. Bchl. that where there is a willful absence from the district, the court has no power to institute •criminal proceedings by issuing an attachment, unless the personal service of the order for the •examination is made within its jurisdiction.</p>

Assumpsit to recover the expenses and disbursements of- the schooner Mississippi, which the plaintiff (who was the owner, by virtue of an absolute bill of sale made by R. & J. Hamilton to him, after the end of the voyage,) had paid on the orders of the defendant, who had been master of the schooner during the voyage, and who had received the freight, and applied It according to the directions of the former owners, R. & J. Hamilton. prayed the court to instruct the jury, in…

Covenant on a lease. See a statement of the pleadings in this cause. 1 Cranch [5 U.- S.] 345. The questions brought into view by the pleadings, were: (1) Whether the defendant was individually bound. (2) Whether the destruction of the building was an inevitable casualty, within the meaning of the covenant. cited 2 Mallory, Ent. 118; 1 Rolle, Abr. 450; Dyer, 33; Shulbrick v.'Salmond, 3 Burrows, 1637; Monk v. Cooper, 2 Ld.

This was an action of covenant on the same policy as that in Straas v. Marine Ins. Co. [Case No. 13,518]. The first count avers the interest to be in Straas & Leeds. The second avers it to be in Leeds alone. The loss is stated to be by capture. Issue was joined upon the three first pleas.

<p>Case No. 6,568.</p> <p>Removal op Causes to Ukited States Court— Color op Authority.</p> <p>1. When a defence depends wholly on the construction of the constitution of the United States and acts of congress, the courts of the United States hare jurisdiction of the subject-matter, without regard to the citizenship of the parties.</p> <p>2. An officer acting in good faith under a warrant purporting to come from his superior, whom he is bound to obey, is acting under “col- or of authority,” whether the superior transgresses his power, or the warrant be irregular or not.</p> <p>3. This case (after verdict and before judgment) was properly certified into the circuit court, and must be tried in the same manner as if brought here by “or as if it had been brought in said court by original process.”</p> <p>[This case was ordered to be removed by the state supreme court at nisi prius (3 Grant. Cas. 412). and is cited in Braun v. Sauerwein, 10 Wall. (77 U. S.) 224.]</p>

The defendant was indorser of a foreign bill of exchange, protested for non-payment as well as for non-acceptance. prayed the court to instruct the jury that it was necessary for the plaintiff to prove that the defendant had reasonable notice of the protest for non-acceptance; and cited Kyd, Bills, 109, 117-119, 137; Milford v. Mayor, 1 Doug. 55; Bull.

The plaintiffs in these two cases brought suit in replevin for wheat in the common pleas court of Fulton county, Ohio, against the defendant railway company; the railway company disclaimed any ownership in the wheat except as bailees for carriage, but alleged that the other defendants, citizens of New York, claimed the wheat, and prayed that they be substituted as parties defendant in its place, which was done by order of the court under section 5016 of the Code of Ohio…

[This was a bill in equity by Richard Hoe and others against Theodore Tuthill and others for infringement of plaintiffs’ patent.]

<p>Case No. 6,674.</p> <p>Patents — Impeachment Collaterally — Decision op Court on Pending Application.</p> <p>1. A court will not exercise jurisdiction, by granting an injunction or otherwise upon the allegation in a bill in equity, that the defendant has surreptitiously procured a patent right for an improvement of which the complainant avers he was the first and original inventor, and fot which he had made his application for a patent right, which, at time of filing, his bill, had not been passed upon by the commissioner of patents.</p> <p>2. The defendants having a patent, all the presumptions of law are in favor of its validity, and its validity can not be collaterally impeached.</p> <p>3. The complainant, by his own showing, has only an inchoate right to a patent for the invention in question; and, in this proceeding, the court can not anticipate the decision of the commissioner of patents upon his application, or decide, in this indirect way, on the validity of the patent of the defendants.</p> <p>4. If the complainant succeeds in obtaining a patent, he will be in a position to contest the validity of the defendants’ patent by a suit against them for an infringement.</p>

<p>Case No. 6,575.</p> <p>Patents — Jurisdiction in Equity — Fraud — Reissue — Utility—Patent is Prima Facie Evidence or Its Lawful Issue.</p> <p>1. The current of decisions of the last few years, has been, that the grant of jurisdiction in patent cases, is as full in equity as it is at law.</p> <p>[Cited in Yaughan v. East Tennessee, Y. & G. R. Co., Case No. 16,898; Atwood v. Portland Co., 10 Fed. 285.]</p> <p>2. If in any case fraud is maintained, no court will grant relief to the party on whom the fraud is proven. Fraud contaminates and vitiates every, transaction, and to the guilty party completely closes the door of redress.</p> <p>3. A reissue can be obtained only for that which was the original and true invention of the patentee, but which he failed to claim or describe in the original claim and specification.</p> <p>4. The invention must be shown in some part of the patent, specification, drawings, and model, or it can not be covered by the reissued patent.</p> <p>5. All that the law requires, as to utility, is that the invention shall not be frivolous or dangerous. It does not require any degree of utility; it does not exact that the subject of the patent shall be better than anything invented before, or that shall come after. If the invention is useful at all, that suffices.</p> <p>[Cited in Cook v. Ernest, Case No. 3,155; Converse v. Cannon, Id. 3,144.]</p> <p>6. The patent itself is prima facie evidence that it was lawfully issued, and that the party who claims it is the original inventor; and if it be assailed, the proof must come from the party calling the validity in question.</p> <p>7. The reissued patent, unless fraud upon the patent office be proved (and it must be proved, never inferred), is prima facie evidence that there has been no abandonment of the invention to the public, and the burden of proof is on the defendant to show that any surrender to the public has taken place.</p> <p>8. The reissue furnishes prima facie evidence that everything necessary to justify the commissioner in granting the reissue had been produced before the grant was made.</p>

<p>[This was a bill in equity, filed [by James H. Hoffman] to restrain the defendants [Albert Aronson and Joseph N. Aronson] from, infringing letters patent [No. 45,99S], for an “improvement in turn-down enameled paper collars,” granted to complainant January 24, 1S63, and reissued [No. 2,034] July 25, 1865, and more particularly referred to in the report of the case of Hoffman v. Stiefel [Case No. 6,578]. The nature of the invention and claim is sufficiently stated in the opinion of' the court.] 2</p>

<p>Case No. 6,577.</p> <p>Dismissal op Suit — Retraxit — Conveyance — Sufficient Description of Grantee.</p> <p>1. The dismission of a suit agreed does not amount to a retraxit, and is no bar to a future suit for the same cause of action.</p> <p>[Cited in Hoover v. Mitchell, 25 Grat. 390; Rolfe v. Burlington, C. R. & N. Ry. Co., 39 Minn. 400, 40 N. W. 2G7.]</p> <p>2. A conveyance to “P. H. & Son,” a mercantile firm, it seems, is a sufficient description of the son to enable him to take under the deed.</p> <p>[Cited in Seymour v. Western R. Co., 106 U. S. 321, 1 Sup. Ct. 124.]</p>

This was a bill in equity [by James H. Hoffman] to restrain the defendants [Edward Stiefel and Isaac Ney] from infringing two letters patent granted to complainant, one [No. 45,998] for “improvement in turn-down enameled paper collars,” issued January 24, 1865, and reissued July 25, 1865 [No. 2,034], and the other [No. 47,107] for the “manufacture of sweat-proof paper collars,” issued April 4, 1865.

<p>[This was a proceeding by George B. Hoffman and William H. Hoffman against Nathaniel F. Williams, collector.]</p>

Libel by the seamen of the brig Marshall for wages. The voyage was from Boston to the west coast of Africa, and the master [Richard H. Y arring ton] intended to trade np and down the coast until the outward cargo of rum and tobacco should be bartered for palm oil and other products of the country to load the ship for home.

Slander. The words laid in the declaration were, “You stuck a pitchfork into a man in Ireland, and murdered him, and fled.” The plaintiff’s witness proved that the defendant said that he had heard one Tweedy say that Burke told him that the plaintiff had killed a man in-Ireland, with a pitchfork, and had fled for it. in cross-examining the plaintiff’s witness, asked him whether Burke was a responsible man; whether he lived in the city at that time, &c. objected to the…

This was an action on a policy of insurance, dated 15th May, 1804, on 390 bags of coffee, shipped by the plaintiff, on board the Surprise, at and from the Cape of Good Hope to Philadelphia; the coffee valued at 20 cents per pound; the ship being warranted American property. In the policy, is inserted a written clause, that the premium is after the rate of seven and a half per cent, to return six and a half, on so much as may be insured in England, previous to this insurance.

The defendant, -Manselly, was the holder of a bottomry bond executed to him at Antwerp by Trott, master an<j owner of the brig Harriet, on a voyage from Antwerp to New Castle and to the United States. The vessel, having deviated, and earned freight on the deviated voyage, was lost before arriving in the 'United States, a portion of her freight having been saved and remitted to New York. Robertson was mortgagee of the vessel, and was entitled to her earnings on the voyage.

<p>Case No. 6,584a.</p> <p>Judgment — Amount Claimed.</p> <p>The judgment cannot exceed the amount claimed in the declaration.</p>

This was an ejectment for land lying in Cumberland county, Pennsylvania. The plaintiff claimed, under a conveyance from his father, David Hoge, dated the 12th of March, 1804.

■ [This was an action on a policy of insurance for $10,000, issued October 22, 186S, by the defendant to the plaintiff, Carrie Hola-bird, upon the life of O. F. Holabird, her husband, in consideration of the representations made in the application, and of the amount of the premiums- paid by Carrie Holabird, the assured..

The Windham Provident Institution for Savings, of Battleboro’, Vt, offered for proof, against the joint estate of the bankrupt firm, two notes of $5,000 each, payable to the order of the savings-bank, on demand, with interest payable semi-annually. One note was in this form; “We jointly and severally promise,” and was signed, “F. F. Holbrook & Co., F. Goodhue, S. M. Waite.” Goodhue and Waite were sureties only, though this did not appear on the note.

This was an action on a policy of insurance against fire, .underwritten by the defendants in the sum of seventy-five hundred dollars, on movable machinery, and stock, in a cotton-mill.

In this case the plaintiff [William Hol-brook] filed his bill in the usual form, requiring an answer from the defendant [John Black] under oath. Afterwards, and before the filing of the answer, the plaintiff's counsel moved that the defendant be ordered to make his answer without oath.

[These bills were brought by Frederic Hol-brook, trustee, and others, against Josiah B. Small and Elbridge G. Matthews, to restrain infringement of certain patents.]

This was the case of a scire facias against the defendant [Jacob P. Seagraves,] as special bail for Willard Holbrook. The suit was commenced against the original defendant in the state court of common pleas. Upon the removal of the cause into this court, the bail on the original writ became discharged, and Seagraves became special bail for the defendant, in conformity with the provisions of the act of congress in relation to such cases.

<p>[Bills by Frederic Holbrook, trustee, and others, against Josiah B. Small, and against Elbridge G. Matthews and others, for infringement.]</p>

<p>Case No. 6,597.</p> <p>Equity — Admission in Answer — Estoppel—Cer-tifícate of Acknowledgment and Registration of Deed — Whether Conclusive — Grantor as Witness to'Impeach Deed — Redemption of Mortgage.</p> <p>1. An admission, in an answer to a bill in equity, that a deed bears a certain date, does not estop the defendant from showing the deed was not then delivered, and was fraudulently antedated.</p> <p>2. In Massachusetts, the certificate of acknowledgment and the registration of a deed, do not estop a third person from proving that both the deed and the certificate were fraudulently antedated; and the grantor is a competent witness to prove this. It is not necessary to call a subscribing witness.</p> <p>3. If a mortgagor induces a third person to purchase a mortgage by promising in writing to pay with interest the whole sum advanced, the assignee of the equity of redemption will be allowed to redeem only, by paying what the assignor must have paid.</p>

Holcomb, having been held to bail by a commissioner for having in his possession miniature photographs of United States treasury notes, about the size of a twenty-five cent issue of fractional currency, applied to Mr. District Judge NELSON for his discharge on habeas corpus.

<p>[Action at law by William Holden against William Collins.]</p>

<p>Case Wo. 6,600.</p> <p>Chew or Wrecked Ship as Sai.vors — Construction or Ship Out of Remnants — Who are Owners.</p> <p>1. Where a whale ship, owned in Pall River, was wrecked near to a very small and low sand island, in the Pacific Ocean, uninhabited, and at a great distance from any other land, and the crew, with great labor, rescued a part of the oil from the water, and placed it upon the island, and it afterwards came to a place of safety; held, that the crew were not salvors.</p> <p>[Cited in The Antelope, Case No. 484.]</p> <p>2. The master and crew, as the only means of escaping from the island, and saving property, built a schooner of thirty seven tons burden, and for this purpose used remnants of the wrecked ship, which were of no value to her owners; held, that the remnants were rightfully so used, and that the schooner was the property of the master and crew who built her.</p> <p>3. In this schooner they conveyed the .cables and anchors of the wrecked ship, and a part of her oil, to Oahu; held, that the master and crew were entitled, as owners of the schooner, to compensation for such transportation.</p> <p>[Cited in Strout v. The Cuba, Case No. 13,-549; The Aguan, 48 Ped. 322.]</p> <p>4. At Oahu, the master, in order to rescue a part of the crew left on the island, and a quantity of oil which had also been left there, purchased a brig, and in payment gave a draft on Nathan Durfee, one of the owners of the wrecked ship, who accepted and paid the draft; held, that Durfee then became sole owner of the brig.</p> <p>5. With this brig, the master of the lost ship, proceeded to the island, and with mueh risk took on board the part of the crew, and oil, which had been left there, and brought them Bafely to Pall River; held, that the owner was entitled to recover compensation for the service, over and above his expenses and risk, and had a lien therefor.</p> <p>NOTE. In The Neptune, 1 Hagg. Adm. 237. Lord Stowell, giving judgment in favor of seamen’s claim for wages, in a case of wreck, where materials had been saved by them. said, as to their being considered salvors: “I will not say, that in the infinite range of possible events, that may happen in the intercourse of men, circumstances might not present themselves, that might induce the court to open itself to their claim of a persona standi in ju-dicio. But they must be very extraordinary circumstances indeed.” In The Florence [16 Jur. (pt. 1) 572], nearly thirty years after-wards, Dr. Lushington speaks of such a claim, as of novel impression in an English court; and he sustained it. on the ground, that the seaman’s contract had been vacated, by an abandonment of the ship at sea, on account of damage received and the state of the elements, for the purpose of saving life, without hope of return, in good faith, and by the master’s order; and so the libellants, not being seamen. might be salvors of the ship. .The case of The Holder Borden [Case No. 6,600], and the American authorities cited below, do not seem to enlarge this doctrine, nor to sustain the claim of seamen to salvage reward for services rendered during the existence of the contract. Mesner v. Suffolk Bank [Id. 9,493]: Hiller v. Kelley [Id. 9.577]; The Star. 14 Law Rep. 487; The Robert & Anne, Stn. Adm. 254: Nickerson v. The .Tohn Perkins [Case No. 10.252]; The Acorn [Id. 30]; The John Perkins rid. 7.360]; Mason v. The Blaireau. 2 Cranch [6 U. S.] 240; The Wave [Case No. 17.300]. The case of The Mary Hale [Id. 9.-213] seems to go farther in favor of the seaman than the cáse in the text, or the cases cited. The numerous eases, already cited in The Massasoit [Id. 9.260], in which wages have been allowed, out of wreck, as salvage, or quasi salvage, can hardly be considered, in view of subsequent decisions, as an authority for the exception.</p>

Petition by creditors to have their debtor [Thomas A. Holland] adjudged a bankrupt for giving fraudulent preferences and making conveyances of his property with intent to delay, defraud and hinder his «•editors. The debtor, by. answer, averred that the conveyances given by him were given in good faith, to raise money with which to increase and prosecute his business, and without fraudulent design or purpose. Proofs were taken.

<p>[In bankruptcy. In the matter of John W. Holgate.]</p>

[In bankruptcy. In the matter of D. G. Holland.] On an issue certified by the register, Benjamin J. Brown, Esq., formed under general order 34, upon thfe application of the assignee to expunge the claims of William Final, a creditor of said estate, on the ground of a fraudulent preference.

<p>Case No. 0,605.</p> <p>Jurisdiction in Bankruptcy — Provisional Warrants — Seizure op PropErtt — Injunction.</p> <p>1. The district court, in an involuntary case, has no authority, under a provisional warrant to order the seizure of property from the possession of a person to whom the debtor transferred it before the filing of the petition.</p> <p>2. The district court, in an involuntary case, may issue an injunction to prevent the disposal of property by a person to whom the debtor has transferred it.</p>

This was an action on the case [brought by John Holland against the town treasurer of Cranston] to recover damages for an injury received by the plaintiff through a defect in a highway, which the town wab bound to keep in repair. The defendant pleaded that no notice was given to the electors of the town, pursuant to the thirteenth section of the act concerning towns (Dig. 299). The plaintiff demurred.

<p>Case No. 6,607.</p> <p>Patment — Proof of Debts — Illegal Contract —Confederate Bonds.</p> <p>The plaintiff, at various times prior to and on the 16th day of June, 1862, had made deposits with the Bank of North Carolina. On the 30th day of March, 1864, his account with the bank was made up, and the sum of $5253.69 ascertained to be due to him. On that day Holleman drew and delivered to the bank his cheek, in the usual form, for the full sum due to him, and accepted in part payment for the check five coupon bonds, issued by the state of North Carolina, on the 1st day of January, 1863. which were issued in aid of the Rebellion. Eeld, that such bonds, when accepted by a creditor in payment of his debt, and while they are of value as a medium in the money markets, constitute a valid medium for the payment of a debt, provided the contract or engagement in which they are used waB not a contract made in aid of the Rebellion.</p> <p>[See Bailey v. Milner, Case No. 740.]</p>

[Appeal from the district court of the United. States for the district of Massachusetts.] An information upon a seizure, by the collector of Portland, was filed in the district court of Maine, on the 6th day of July, 1813, against the brig Hollen and certain parcels of goods on board, for an alleged importation of the same goods into the United States, contrary to the non-importation acts then in force.

<p>In bankruptcy.</p>

Jehu Hollingsworth, the younger, and John Shallcross, of the city of Philadelphia, merchants, by their bill and libel, in all humble manner shew, that they the said Jehu and John are citizens of the United States of America, and real and true owners of a brigantine called the Betsey, commanded by William Clark, and in due form of law registered by the government of the United States.

<p>Case No. 6,813.</p> <p>Interest-Usust-Coupons.</p> <p>1. By the English decisions, compound interest is not recoverable, except in special cases. It is not usurious, but is supposed to be pernicious.</p> <p>2. Interest, when due. may be demanded and recovered. But by the English rule, which has been adopted by some of the courts in this country, a note for the interest is not valid, unless given after the interest is due, and for the payment of interest that may afterwards accrue. The authorities in this country, on this subject, are conflicting.</p> <p>[Cited in Aurora v. West. 7 Wall. (74 U. S.) 105: TJ. S. Mortgage Co. v. Sperry, 138 U. S. 341, 11 Sup. Ot. 321.J</p> <p>3. Eeason and justice require the performance of contracts, not entered into in violation of law.</p> <p>4. The interest in this ease was made payable, in the coupons, to bearer. They passed by delivery, which was intended to give them currency. This promise is within the 9th section of the Michigan statute, which gives interest.</p> <p>[Cited in Wheaton v. Pike, 9 E. I. 133.]</p> <p>5. And interest is recoverable on the sums named in the coupons, if not paid when due.</p> <p>[Cited in Harper v. Ely, 70 Ill. 58G; Mathews v. Toogood, 23 Neb. 538, 37 N. W. 265.]</p>

[This was an action on the case for a libel on the plaintiff in the Aurora, a newspaper published by William Duane.] The above cause being called for trial, Dallas, of counsel with Duane, moved to put it off, on the affidavit of the defendant, which stated that he had been informed, that one Hercules Mulligan, of the city of New York, was a material witness for him on the issue joined, and that he did not become acquainted with the fact before Saturday evening.

This was an action on the case for a libel on the plaintiff, in the Aurora, a newspaper published by the defendant. [The defendant had moved for a postponement, but had been overruled. Case 6.614.] The declaration stated the plaintiff to be a citizen of the United States, the defendant to be an alien, and subject of his Britannic majesty.

[This was an attachment for a contempt in connection with Case No. 6,615. [The plaintiff in this case had succeeded in securing a verdict… Held: “that he who attempts to raise a prejudice against his antagonist, in the minds of those who must ultimately determine the dispute between them; and who for that purpose, represents himself as a persecuted man. and asserts that his judges are influenced by passion and prejudice, wilfully seeks to corrupt the source, and to dishonor…

[The defendant in the above case had been attached for contempt, and in justification of his acts of contempt had cited an article aimed at him which had been published by Caleb P. Wayne on the day following the trial (Case No. 14,997).

<p>[This was a motion to set aside a verdict] On a former day, Mr. Dallas had obtained a rule on the plaintiff, to show cause why a verdict which the plaintiff had obtained against Duane, in an action on a libel, to recover damages, should not be set aside. See Hollingsworth v. Duane [Case No. 6,615]. The ground of Mr. Dallas’s motion, was, that the foreman of the jury, which gave the verdict, was an alien, and that Duane was, at the time of empannelling the jury, ignorant of this fact. His proof of his alienage, was the oath of Mr. Leiper, that since the trial, the juror had told him that he, the juror, was not a citizen of the United States.</p> <p>Mr. Dallas, in support of his motion, now contended, 1. That the system of jury trial, as known in England, and of course with all the English guards and means to secure a fair trial, was in force in Pennsylvania. It was established here by our ancestors, exactly as they knew that it existed at home. It was established here entire. It is spoken of in our colonial records, as a system already known. “Lawful challenges shall be allowed.” (“Act for the advancement of justice and .more certain administration thereof,” passed in 1718, c. 274, § 4.) This referred to challenges lawful by the common law. The Revolution found at its origin, this free, ancient, and entire system existing among us. The constitution ordained by Pennsylvania in 1776. has as a leading feature in its bill of rights: “In trials between man and man. trial by jury shall be held sacred.” It alluded to the system; including, of course, the right to challenge for causes, declared by common law, causes of challenge. By the present constitution, it is equally a section of its declaration of rights: “Trials by jury shall be as heretofore.” Now, 2. By English law- alienage is cause of challenge. I refer to elementary books. 3 Bl. Comm. p. 362. “If a juryman be an alien born, this is a defect of birth.” And a man, he tells us just before, may be challenged “propter defectum.” Lord Coke to the same point, (Co. Litt. 156,) says a man may be challenged “propter defectum pa-triae, as aliens born.” We have decided '(Respublica v. Mesca, 1 Dali. [1 U. S.] 73) that an alien may have aliens on his jury. The converse must hold true, and a citizen may keep them off. Especially is it true in a case like this, a case not addressing itself to the conscience, which is given to all alike; not resting on a violation of moral duty, which alien and native would alike feel, and alike punish, but a case of libel, and involving accordingly some of the gravest and most peculiar rights of an American citizen. Is he on such points as this to have for his judge a man educated under the despotic rule of the autocrat of the North, of the emperor of Austria, or the successors of Charles the First? Our rights and opinions on the subject of the press, are peculiar. What country of Europe has declared that the “printing presses shall be free to every person who undertakes to examine the proceedings 'of any branch of government,” and that “no law shall ever be made to restrain the right thereof.” In England the press is much restrained by her institutions, and still more by direct restrictions; and on the continent no man.dares, or even thinks of expressing his sentiments respecting others, through the press. They would consider it a high offence to do so; yet with us, this right is regarded as essential to the establishment of the “great and essential principles of free government” (Const. Pa. 9). To form a judgment warranted by our rights, and principles of government; to say what, according to these rights and principles, rec-ognised and ordained, amounts to transgressing the rights of the press, a man must be a citizen of this country; he must know its laws and constitutions; and must of course have been educated here; must have grown on our soil and in our atmosphere. By authority, then, and natural sense, it is clear an alien was incompetent to try this question; that his voice in the verdict accordingly amounts to nothing, and that therefore, this is a verdict by only eleven men; a void verdict; or in other words, no verdict at all. Had we at the time of em-pannelling these jurors known of this man’s incompetence, we should have objected to h'im then. Having only discovered it since, we may do so now. The cases are numerous; that of- Lord Herbert v. Shaw, 11 Mod. Ill, is in point It is there said, “If a party have cause of challenge, and knows of it long enough before the trial, and he does not challenge, he shall not have a new trial: contra, if he has not timely notice of it.” The new trial in this case was refused because the party “knew” of the cause of challenge and had not availed himself of it. Of course the inference must be, (what indeed is elsewhere directly stated,) that if he had not known of the cause of challenge, a new trial would have been granted. The reason of the distinction is just; a man shall not when he knows a juror is incompetent, wait to see if the verdict will be for him, and if not ask for a new trial; • this would be unfair to the opposite party; but if he don’t know of his incompetence, no unfairness can take place. In the first instance, he will be held to have waived the incompetence. In the second, having no knowledge of it, he cannot be supposed to have waived it.</p> <p>1st That there was no proof of alienage. 2d. That they thought it questionable whether it was cause of challenge in Pennsylvania; but 3d. That at any event the objection was too late after verdict</p>

[This was a libel in rem by Levi Hollings-worth and son and Jonathan Ogden, owners of the ship Jane, Frederick S. Luburg, master, and James Fairfowl, first mate, and others, the officers and crew of the said ship, against seventy doubloons and three small pieces of gold, each of the value of an eighth part of a doubloon, for salvage.]

<p>[In bankruptcy. In the matter of John A. Hollis and of J. E. Kenney and others.]</p>

<p>Case No. 6,623.</p> <p>Life Insurance — Certificate of Examining Phtsician as Evidence — Misrepresentation.</p> <p>1. The certificate of the examining physician of a life insurance company is evidence of its recitals, and is conclusive unless the opinion of the physician was influenced by fraudulent representations or concealment of material facts.</p> <p>2. An insurance company is not permitted to prove that the examining physician was incompetent; he was the agent of the insurer and not of the insured.</p> <p>3. A declaration that the insured had not previously had a severe disease, held, not to include the ordinary diseases of the country which yield readily to medical treatment, and do not tend to shorten life.</p> <p>4. A misrepresentation to avoid the policy must have been in relation to a material fact that would have probably induced the insurer to decline the risk.</p> <p>5. The insured had, for a period of three months, about three years previous to the contract of insurance, disease of the bowels, having been perfectly healthy during the interval; this fact was not communicated to the insurers; ■the insured died about three years after the ■policy was issued, of a disease of an entirely .different character: Eád, that the previous sickness was not material, and the fact that it was not communicated would not avoid the ■policy.</p>

<p>[This was a suit by Birdsill Holly against Union City, Ind., to recover damages for the unlawful use of plaintiff’s patent.]</p>

<p>Case No. 6,625.</p> <p>Death by Wrongful Act — Admiralty Jurisdiction — Damages—Fright and Mental Suffering — Collision—Want of Lookout.</p> <p>[1. Damages are recoverable by a libel in rem in admiralty, for the wrongful death of a person, independent of statutory remedy.]</p> <p>[Cited in The Manhasset, 18 Fed. 925; The Harrisburg, 119 U. S. 208, 7 Sup. Ct. 144.]</p> <p>[But see note to Case No. 541.]</p> <p>[2. In computing damages for a wrongful death, only the pecuniary loss is to be considered; nothing is to be allowed by way of punishment, or for the sufferings of the deceased, or for the bereavement of his relatives.]</p> <p>[3. In the case of a minor son eighteen and a half years old, whose earnings amounted to less than the cost of maintaining him, the court considered the contingencies of his future earnings, and his contribution to the support of his widowed mother, etc., and the expense of recovering and interring his body, and allowed her ?700 as compensation.]</p> <p>[4. No damages are given for fright or mental suffering resulting from mere risk or peril, where no actual injury has been sustained; nor for the results of mental or nervous disturbance, where no bodily harm is sustained.]</p> <p>[5. A collision occurred on the Chesapeake Bay, just off the mouth of the Chester river, between a steamer which had just come out of the river and a sailing yacht intending to enter the river, shortly after the yacht passed under the stem of a tow. The steamer was in charge of a captain and mate, both of whom were in the pilot house, and were strangers to the river and bay. and was without a lookout. The deviation in the course of the yacht, as she passed under the stern of the tow, was so slight as not to alter her lights to the steamer. The inboard screens of her side lights were not of the length required by law, but the lights were burning brightly, and were not discovered at all on the steamer until immediately before the collision. Held, that the steamer was solely at. fault.]</p> <p>[NOTE. It was generally held in the United States prior to 18SG that a libel might be maintained in the admiralty for a maritime tort causing death. Cutting v. Seabury, Case No. 3,521; The Charles Morgan, Id. 2,618; The Sea Gull, Id. 12.578: Holmes t. O. & C. By. Co.. 5 Fed. 75; The Towanda. Case No. 14,109; The City of Brussels, Id. 2,745; The Columbia, 27 Fed. 704. and Armstrong v. Beadle, Case No. 541. Contra, The Sylvan Glen, 9 Fed. 335. In this last case it was decided that damages are not recoverable in rem in admiralty for the wrongful death of a person unless by special statute. The doctrine has been since set at rest by the decision of the supreme court in The Harrisburg, 119 U. S. 209. 7 Sup. Ct. 144, in which Mr. Chief Justice Waite delivered the opinion of the court. He reviews the American cases upon the point, a majority of which cases follow the rule laid down by Air. Chief Justice Chase in The Sea Gull. See note to Case No. 541.]</p>

Trover for hogs. The defendant justifies under a by-law of Georgetown, authorizing any person to take up hogs going at large, &c. objected to the copy of the by-law offered in evidence, because the original by-law did not appear to have been made under the seal of the corporation, although the copy produced was attested by the clerk of the corporation, as a true copy under the seal of the corporation, and also by the mayor, who has also annexed the corporate seal to his…

The petition of Anthony Holmead for the certiorari, on the 17th of November, 1837, addressed to the court in vacation, was presented to the chief judge.

<p>[In bankruptcy. In the matter of Edward O. Holmes and John W. Blanchard, copart-ners.]</p>

<p>Case No. 6,632a.</p> <p>Bankruptcy — Composition—Practice—Bights op Debtor.</p> <p>The amount at which the debt due to a creditor was fixed, in composition proceedings, for the purpose of a vote by the creditor, was held, under the circumstances of this case, not to have been so fixed as to estop the debtor from questioning the amount on which the percentage of the composition should be calculated, in paying the composition.</p> <p>[Cited in Wilmot v. Mudge, 103 U. S. 219.]</p> <p>[Certain exceptions to the report of the commissioner were overruled in 2 Fed. 153, and upon petition of review this decision was affirmed by the circuit court. 7 Fed. 584.]</p>

<p>[Iii bankruptcy. In the matter of Charles W. Holmes.]</p>

<p>Case No. 6,635.</p> <p>Seamen — 'Wages—Discharge—Discharge of Cargo.</p>

<p>[In bankruptcy. In the matter of D. K. Holmes.]</p>

This was a libel in personam, by Allen Holmes against A. P. Dodge, master of the brig Magdala, to recover wages earned on board the brig. The libel claimed wages for one month and twenty-eight days’ services, at $18 per month.

<p>Case No. 6,638.</p> <p>Inadequacy of Price — Effect on Sale — Marriage at Common Law — Marriage, What Constitutes it According to Laws of Oregon and California — Marriages, When Void — Cohabitation not Marriage — Evidence of Previous Marriage — Marriage, Consent Necessary to — Cohabitation not Sufficient Evidence of Marriage to Pound Claim for Dower thereon — Marriage, with the Circumstances, should be Alleged in Pleading.</p> <p>1. Mere inadequacy of price is not sufficient to set aside a sale, but when such inadequacy is so great that the mind revolts at it. the court will lay hold of the slightest additional circumstance of advantage or oppression to rescind the contract.</p> <p>[Cited in King v. French, Case No. 7,793; Parkhurst v. Hosford, 21 Fed. 834.]</p> <p>2. Semble, that at common law, or in the absence of any statute prescribing the mode of contracting marriage, a contract to marry per verba de futuro cum copula, does not amount to a marriage in fact.</p> <p>3. The laws of California (Hit. Dig. 4, 466) and of Oregon (Code Or. 783, 785) require that the consent of the parties to become husband and wife, must be declared in the presence of a person authorized by such laws to solemnize marriage, and two witnesses, and without the observance of these formalities the marriage relation cannot be created or entered into, in either of such states.</p> <p>[Cited in Re McLaughlin’s Estate, 30 Pac. 655.]</p> <p>4. Where citizens of a state purposely go beyond its jurisdiction and not within the jurisdiction of another state — as at sea — and then contract marriage otherwise than in accordance with the laws of such state, the transaction is a fraudulent evasion of the laws to which the parties owe obedience, and, therefore, void.</p> <p>5. Living together as man and wife, although evidence of a previous marriage, cannot make parties man and wife, nor can any length of cohabitation; however exclusive, ever constitute the relation of marriage.</p> <p>6. Marriage, although arising out of contract or the consent of the parties, is a relation, as much so as that of parent and child, and such consent must be mutual and absolute per verba de praesente, not merely to live together exclusively, but to become joined to one another in the estate of matrimony.</p> <p>[Cited in Sharon v. Hill, 26 Fed. 371.]</p> <p>7. On a bill to enforce a claim to dower, cohabitation of complainant and deceased and other circumstances, examined and held not sufficient evidence of a previous marriage between them.</p> <p>8. Where a woman claims to have been the wife of another, it is an insuperable objection to such claim, that the pleadings do not contain an allegation of a marriage to such other, with the circumstances of time and place, and that she withholds her testimony as a witness upon the same point</p> <p>[In Case No. 3,274, a bill was filed to establish a trust in favor of Teresa E. Coulson and her two said sisters. Upon answer being made, certain exceptions thereto were allowed.]</p>

<p>Case No. 6,639.</p> <p>Sb am bn — Medical Attendance — Accident.</p> <p>1. Where a seaman in a foreign port, contracts an ordinary disease without any fault of his own, and remains on board a vessel which is properly provided with a chest of medicines, the expenses for the attendance and advice of a physican, if evidently necessary for the safety of his life, are to be deducted from his wages.</p> <p>2. Where a seaman is disabled by an accident in the actual discharge of his duty, he is to be cured at the expense of the ship.</p> <p>[Cited in Richardson v. .The Juillette, Case No. 11,784.]</p> <p>[Cited in Holt v. Cummings. 102 Pa. St. 215.]</p>

<p>Case Wo. 6,640.</p> <p>Salvage — Steamboat — Costs — Principles op Public Polict in Salvage Cases.</p> <p>1. A sloop laden with iron ore, went on a rock in Hell Gate, and was left by her master and crew. The sailors, however, watched her from the shore till she was carried off the rock and floated towards the Bread and Cheese, a dangerous reef, when they put out in their boat to board her. A passenger steamboat on her way to Harlem also saw her position and went to her, and took her in tow before she reached the Bread and Cheese, and before the crew reached her, and towed her to Harlem; and the master of the steamboat, while negotiations were pending to settle the claim for salvage, filed a libel to enforce the claim. Held, that file facts make out a clear case of salvage.</p> <p>[Cited in The Alaska, 23 Fed. 608.]</p> <p>2. The opinion of the crew of the sloop that they should have been able to save her if the steamboat had not gone to her aid, although to be taken into account in fixing the compensation. as indicating the extent of the risk, does not take the casi out of the rules applicable to eases of salvage.</p> <p>[Cited in M’Connochie v. ICerr. 9 Fed. 53; The Plymouth Rock. Id. 410: The Cregon,</p> <p>27 Fed. 872; The S. A. Rudolph, 39 Fed. 333.]</p> <p>3. The court, if it were not a case of salvage, might be inclined to withhold from the libel-lant his costs, because of his putting the claim in suit, while it was in a fair way to be settled; but the same considerations of public policy which affect salvage awards are not overlooked in disposing of the question of costs.</p> <p>4. On a valuation of $1,500, the court allowed $300 and costs.</p>

<p>Case No. 6,642.</p> <p>Seamex — Wages—Forbearance—Pkesumptiox op Payment.</p> <p>1. A forbearance to sue for nine months, even if the libellant was on the spot and the vessel within the power of the court during that time, does not raise a presumption of payment, either in the admiralty or any other court.</p> <p>2. The mere naked fact that a plaintiff in the admiralty, or any other court, has discontinued his action, is not a bar to a subsequent suit.</p> <p>On the 16th July, 1841, an appeal was taken from this decree, to the circuit court of the United States for the Third circuit, and on the 25th October, 1841, that court affirmed the decree, with costs. [Case unreported.]</p>

<p>Case No. 6,643..</p> <p>Municipal Election — Registeking Officers— Injunction.</p> <p>A bill of injunction will not lie in the United States circuit court to enjoin defendants, who are registering officers and poll-holders of election in a city of a state, from registering voters or holding an election in pursuance of state legislation and municipal charter.</p> <p>[Cited in Guebelle v. Epley (Colo. App.) 28 Pac. 91.)</p>

Actions .for trespass and false imprisonment These were actions of trespass against Philip H. Sheridan and John H. Paige — the one for trespass to the person, and the other to the property of the plaintiff. They were removed into this court from the state court, and, after removal, ordered to be tried at the same time and to the same jury.

[This was a bill in equity by James Holmes and others against the heirs of Daniel Trout and William Moreland, to settle the title of certain lands.]

<p>Case No. 6,040.</p> <p>Bankruptcy — Examination op Bankrupt.</p> <p>Where bankrupt is upon his examination and fails to answer proper questions propounded, he will be compelled to answer by the court</p>

The plaintiffs [Holt & Co.l living in an interior part of England, in 1799, they shipped a cargo of goods, intended for a merchant in Baltimore; but to secure themselves, in case of any accident happening to the person so intended, they sent them to order; and a Mr. Willis, of that town, the partner of M’Call Medford of London, was authorized to receive them.

Ejectment [by the lessee of Holtzapple and wife against Phillibaum] for two hundred and fifty acres of land in Cumberland county.

<p>Case No. 6,652.</p> <p>Charter Partt — Restraint op Government — Dead Freight — Recoupment.</p> <p>1. Where a vessel was chartered for a voyage to the Canary Islands and back to New York, the charter providing that the charterer should furnish, at the Canary Islands, 150 tons of barilla and 20 pipes of wine, or more, and the vessel arrived at the Canary Islands and discharged her outward cargo, on which freight was paid, and received on board 20 pipes of wine, but no barilla, although the charterer had it ready for her, because the authorities would not allow it to be put on board of her, unless she would first go to Vigo. in Spain, to quarantine, and the master refused to go to Vigo, but, after waiting the number of lay days specified, returned to New York, being obliged, for lack of the barilla, to put in at. St. Thomas for ballast, and. on her arrival at New York, her owners sued the charterer to recover freight on the wine delivered, and dead freight for the 150 tons of barilla, and damages for being compelled to put in at St. Thomas: Held-, that, as there was in the charter no exception of restraints of princes, there was an absolute engagement on the vessel’s part to receive on board the barilla, even though the authorities of the Canary Islands should prohibit its being put on board.</p> <p>2. In the absence of such a clause in the charter. the vessel was in fault in not being in a condition to receive the barilla, and the vessel, and not the charterer, must .bear the loss.</p> <p>3. The acceptance of the outward cargo, and the loading of the wine, did not excuse the failure of the vessel to put herself in a condition to receive the barilla.</p> <p>4. The libellant was entitled to freight on the wine brought, but the charterer was entitled to recoup against it any damages set up in the answer. which arose out of any breach of the charter party by the libellants, to the amount of such freight, but, for aDy claim beyond that, he must resort to his own proper action.</p> <p>[Cited in The Spartan, 25 Fed. 53.]</p>

Attachment, by way of execution, upon a judgment recovered by [Daniel] Homans against Zantzinger, for balance due upon a building contract. The attachment was served upon credits in the hands of G. Coombe, who was summoned as garnishee, and pleaded nulla bona. The building contract was dated 17th September, 1816, but not ac: knowledged and recorded until the 14th of May, 1817.

<p>Case No. 6,656.</p> <p>Promissory Note — Set-Off—Plea.</p> <p>1. Property received collaterally, and not in payment of a note, cannot be set up, in an action on the note, by way of set-off.</p> <p>2. Unliquidated damages cannot be pleaded as a set-off.</p> <p>[Cited in Crenshaw v. Jackson, 6 Ga. 509.]</p> <p>3. Where a plea alleges that the payee of a note received another note and mortgage, to be applied to the note, it is to be construed that the proceeds of the note and mortgage are to be applied when received.</p> <p>4. To make such a plea good, it is necessary to aver the receipt of proceeds, etc.</p>

On libel in admiralty for supplies. During the year 1875 libellant, who was a shipchandler at Port Huron, claimed to have furnished the tug “Home” supplies and money to the amount of five hundred and seventy-eight dollars and eighteen cents, upon the order of Dale & Moore, the charterers of the tug; that the articles were furnished, with the exception of four items, hereafter mentioned. That they were necessary, and were furnished upon the credit of the tug, is admitted.

<p>Case No. 6,658.</p> <p>Debt — Action of — When Maintainable — Panties.</p> <p>1. An action of debt will lie where the sum is certain, and it is the duty of the defendant to pay the amount to plaintiff.</p> <p>2. The action may be brought by the assignee against the acceptor of a bill; and consequently by the payee against the acceptor.</p> <p>3. An indorser may bring debt against the drawer, although there may be intermediate in-dorsements, by striking out those indorsements.</p>

<p>Case No. 6,659.</p> <p>Admiralty — Arrest of Vessel — Rights of Mortgagee — Discharge—Surety.</p> <p>1. In case of the arrest of a vessel in admiralty, a mortgagee has the right to intervene for the protection of his own interest, and contest a forfeiture.</p> <p>2. When a vessel has been arrested, on being discharged from the arrest, upon giving the required bond or stipulation, she returns into the hands of her owner discharged from the lien which constituted the foundation of the proceedings against her, and forever and for all purposes whatsoever, the surety taken being ,as a substitute foi the vessel, and the court has no jurisdiction or power over her thereafter in the same suit or for the same cause.</p> <p>3. The only remedy in a ease where the securities become insolvent would seem to be in an application to the court for an order requiring new securities to be given.</p>

[In equity. Bill by the Home Insurance Company of New York against Stanchfield and Newman.] i[The bill states, in substance, that the complainant is a foreign insurance corporation, and that the respondents are citizens of the state of Minnesota; that on the 15th day of December, 1858, it issued its policy of insurance to the respondent, Stanchfield, the loss, if any, to be paid to the respondent, Newman, whereby the complainant, in consideration of the sum of $45 premium,…

<p>[Action, by the Home Mutual Insurance Company of New Orleans against Sidney A. Stockdale, collector of internal revenue, to recover a tax illegally exacted by the defendant.]</p>

An English brig, the Homely, coming at night, loaded, into the harbor of New York, engaged a tug, the C. F. Ackerman, to take her up the bay, on a hawser. The brig drew 14 feet, and the tug was notified that she-drew so much and was directed to keep a north-west course and in deep water; but no further directions were given or control taken by the pilot on the brig.

Bill at the suit of the petitioning creditors of an involuntary bankrupt merchant or trader, on behalf of themselves and the other creditors, to the intent that the assignee, when qualified, might be added or substituted as complainant. The purpose of the bill was to prevent a creditor from proceeding with an execution levied upon the stock in trade of the bankrupt. The execution was upon a judgment confessed by the bankrupt under a warrant of attorney.

<p>Case No. 6,665.</p> <p>PARTNERSHIP — OBLIGATION TO INDEMNIFT — BANKRUPTCY — Pleading.</p> <p>1. A partner having sold his interest in the concern to his co-partner, who gave a bond and security to relieve his late partner from the debts of the firm and to pay them out of his own property, is not an obligation merely to indemnify, but to p~y the debts.</p> <p>2. An obligation to indemnify, affords no .ground for an action, until the party shall be damnified.</p> <p>3. If the outgoing partner be discharged under the bankrupt law [of 1841 (5 Stat. 440)], he may still enforce the obligation to pay the ■partnership debts.</p> <p>4. The creditors, for whose benefit the obligation was entered into may also enforce the obligation.</p> <p>5. A replication is defective, to a plea of discharge in bankruptcy, which does not state the •debt sued for, to have been placed on the schedule.</p>

Action on the case for filling up and raising the street, so as to obstruct the doors and windows of the plaintiffs’ warehouse.

Action on the case [by Hooe and Harrison] for filling up the street so as to shut up the windows and doors of the plaintiffs’ warehouses. moved the court to instruct the jury, “that if it shall be their opinion that Faw was street commissioner for the corporation of Alexandria at the time when the injury was done, and was then in the actual employment of the corporation, then the corporation are liable for his conduct while in their actual employment as aforesaid, although…

<p>Debt for rent — demise for one year.</p>

<p>Bankruptcy — Proof of Debt — Promissory Notes —Accommodation.</p> <p>1. B. sought to prove against the bankrupt’s estate, five promissory notes signed by C. and indorsed by the bankrupt. It appeared from the evidence that the bankrupt was in the practice of indorsing accommodation notes for C., and that the notes in question were given as security for such -indorsements. The bankrupt indorsed and delivered them to H. for a consideration of about one-fifth of the face of the whole five. Some time thereafter, H. delivered them to B. without indorsing, for two lots of land valued at eight hundred or one thousand dollars, which he has never conveyed to H., but still holds. All the notes, except one, were overdue at the time of the transfer, and H. told B. that there was trouble between the bankrupt and C. Held, that the notes were without consideration as against C.’s estate, and could not be proved against it by the bankrupt for anything more than nominal damages, until he had been called upon to pay the notes he had indorsed for C.’s accommodation, nor by any one holding them without paying a valuable consideration, or with notice that there was no consideration therefor or in fraud of C.’s estate.</p> <p>■ 2. H. is chargeable with notice, for he was put on his inquiry by his knowledge of trouble between C. and the bankrupt, and by the exceedingly low figure at which the notes were sold; and if he neglected to inquire, he must be charged with all the knowledge he would have obtained if he had made inquiry or examination. B. does not stand any better in this respect than H., and he must be chargeable with notice of all the infirmities of the notes. *</p> <p>3. The notes in question cannot be proved for any sum.</p>

This was a petition of John K. Hooper and Nathaniel Shaw, claiming the informer’s share in the proceeds of the sale of fifty-one casks of brandy, seized by the collector of' Portland, and condemned as forfeited to the United States.

[In admiralty. Libel by Asa Hooper, and ¡ the master, owners, and crew of the private brig Thorn, against the brig Hiram and her cargo, whose master was John B. Barker. The case was heard on the claim of Samuel G. Griffiths to the vessel and 28 barrels of flour, and on the claim of Cornthwait and Cary and others to the remainder of the cargo.]

[Appeal from the district court of the United .States for the district of Maryland.] The libel in this case was filed on the 4th of December 1852, by the appellees [William Rathbone and others], merchants at Liverpool, and owners and consignees of certain wheat, shipped from Baltimore for that port, in the month of October, 1851, on board the ship A. Cheeseborough, of which' the appellants [James Hooper and others] were owners.

Hearing in equity, upon pleadings and proofs. The bill in this case was filed to reform a written contract. On November 13, 18G5, complainants purchased of defendant Reilly an undivided one-fourth interest in a patent right for an improvement in harvesting machines, for five thousand dollars, as follows: Two thousand dollars, cash; five hundred dollars, note due March 1, 1866; and twenty-five hundred dollars, note due January 1, 1S67.

[Appeal from the district court of the United States for the district of Massachusetts. [This was a libel by the United States against the schooner Hope (Ritchie and Carson, claimants), for having imported and concealed on board goods of British manufacture, contrary to the existing nonimportation laws. The district court entered a decree in favor of the claimants, and the United States appealed.]

This was a case in admiralty [by Edward Hope and others against the brig Dido and her cargo], tried before the district court, in which a decree was made in favor of the claimants [case unreported], and came up on an appeal yesterday, before the.circuit court The, full particulars of the case are set forth, as below in the following.

<p>Petition of a creditor in bankrupt proceeding for leave to amend proof of his claim by setting up lien.</p>

<p>Case UTo. 6,682»</p> <p>Counsel Pee as Costs.</p> <p>■Where services of counsel are rendered for the benefit of a special fund of a class of creditors, and in opposition to the interests of the general creditors, a counsel fee will not be allowed out of the general fund in excess of the statutory allowance of twenty dollars.</p> <p>[Cited in Platt v. Archer, Case No. 11,214.]</p>

The Dean Cotton Manufacturing Company being entitled to an execution against the person and estate of Samuel Hopkins, on a judgment recovered upon promises; at the present term, Hopkins applied to the court to stay the execution against his person, on account of the pendency of his petition for the benefit of the insolvent laws of the state, in the supreme court of the state; and he produced a certificate, which was as follows: “State of Rhode Island, &c. Washington, Sc.

<p>[In bankruptcy. In the matter of Sidney W. Hopkins.]</p>

Appeal [by John R. Hopkins] from the decision of the commissioner of patents, refusing to grant him a patent for an improvement in apparatus for evaporating fluids, and awarding priority of invention to Junius L. Lewis therefor.

<p>In bankruptcy. In the matter of Sidney W. Hopkins on his own behalf, and against Robert J. Carpenter and Prank H. Collins.</p>

Action at law upon two hundred and seventy coupons, made by the Minnesota ■& Pacific Railroad Company, attached to bonds, dated July 31st, 1858, secured by deed of trust of that date to Farnsworth and others as trustees, but which were delivered to the plaintiff [Edward C. Hopkins], as alleged, June 1st, 1860.

<p>This was an action at law [by Archibald Hopkins against Alexander F. Westcott and others], tried before the court without a jury. The facts are sufficiently stated in the opinion of the court.</p>

<p>Case Ho. 6,693.</p> <p>Freight — Bill or Lading — Agency — Quantity op Cargo.</p> <p>[1. Where a cargo of coal was bought at Philadelphia, and delivered by vessel to the purchasers at New York, and upon arrival at the latter place was found to be several tons less in weight than given in the bill of lading, the master is entitled to recover full freight for the amount which was taken on board at" Philadelphia, and weighed without the knowledge or concurrence of the master, and was duly delivered to the consignees at New York.]</p> <p>[2. The shippers of a cargo are to be considered as agents of the consignees for the purpose of guarantying the amount and quantity of such cargo to the master of a vessel at the point of departure, and the master is not liable for a greater quantity of cargo than was actually laden on board.]</p>

Appeal in admiralty from the district court. [These were libels* by George H. Hopkins, master of the steam tug Thomas Morgan, against the British bark Zeba and the Commercial Wharf & Cotton-Press Company, and bj- John D. Monire, master of the Zeba, against the Thomas Morgan and the Commercial Wharf & Cotton-Press Company.] These causes coming on to be heard together, and having been argued by counsel, before

<p>Case No. 6,695.</p> <p>Patent — Reissue—Pr e-E xisting Device —u Sash-Lock. ”</p> <p>1. The claim of the reissued letters patent, granted October 11th, 1875, to the Hopkins & Dickinson Manufacturing Company, as assignees of George McGregor and George Voll, for an “improved sash-lock or sash-fastener,” (the original patent having been granted to said Voll and McGregor, as inventors, March 30th, 1869,) namely, “a vibrating lever, provided with a boít, in combination with a striking plate or hook, and with a catch segment behind which the bolt can pass, formed upon the plate upon which the lever is pivoted, the whole constituting a sash-fastener, and the parts enumerated in the claim'being and operating substantially as specified,” does not include a vertically moving bolt in combination with a socket upon the base-plate.</p> <p>[See note at end of case.]</p> <p>. 2. Where a patented invention is merely a ■combination subordinate to pre-existing devices, .and has been limited to such sub-combination by the language of the claim, the patentee cannot successfully insist that he is entitled to cover by such claim the pre-existing devices; and this is true where one of the joint inventors of the junior invention is also the inventor of the senior inventions.</p> <p>[NOTE. From this decree the plaintiffs appealed to the supreme court, Where, in an opinion by Mr. Justice Woods, the decision of the circuit court was affirmed. 103 U. S. 786. It was held that if the reissued letters were to be construed, as the plaintiff insisted they should be, — and as the court thought they must be, from several inferences, — to include the sash-locks of the defendants, they are broader than the original letters, and therefore void. The invention of Voll and McGregor was reduced to “consist solely in the fact that the bolt in the locking lever, instead of being driven by. the spiral spring into a hole in the post upon which the lever is pivoted, is driven past the end of a segment raised on the base plate.”]</p>

This suit was brought by James Hopkirk, surviving partner of Spiers, Bowman & Co., -of Glasgow, to charge the sureties of Christopher' McConico, with the amount collected by McConico, as the agent of the firm, and not paid to them.

This was a. suit brought in 1819, on the chancery side of this court, by James Hop-kirk, a subject of the king of Great Britain, and surviving partner of Spiers, Bowman & Co. merchants of Glasgow, against the defendant, William Byrd Page, executor of William Byrd, deceased, to recover the amount of two bills of exchange, drawn by said William Byrd, late of Westover, Virginia, on Bobert Cary & Co. of London.

<p>Case Mo. 6,698.</p> <p>Real Property — Fraudi't.-xt Conveyance— Liability of Don’eb.</p> <p>1.It is a general principle that a voluntary conveyance, made by a person indebted at the ■time, is void as to the creditors whose debts existed' when the gift was made. But, though the fact of the donor’s being indebted at the time of such voluntary conveyance, is a strong badge of fraud, yet where the donor’s fortune was ample, and a gift made by him to his daughter at her marriage was comparatively trivial, and the husband received and retained possession of the subject of the gift; though the donor afterwards became insolvent, the court refused to set the gift aside as fraudulent; a reasonable advancement, made under such circumstances, not being embraced by the statute of frauds.</p> <p>[Cited in Anon., Case No. 474.]</p> <p>[Cited in Huston’s Adm’r v. Cantril, 11 Leigh, 159; Pomeroy v. Bailey, 43 N. H. 124: Robinson v. Boyd, 17 Mich. 134; Lockhard v. Beckley, 10 W. Va. 99, 107; French v. Holmes, 67 Me. 194.]</p> <p>2. Quaere, how far the intervening marriage of the daughter would affect such a question, as between the creditors of the donor, and the husband of the daughter? Would the subsequent or contemporaneous marriage of the daughter render valid a gift which, independent of that marriage, would be void as to tne antecedent creditors of the donor? It seems, that if the gift could be considered, in any fair construction, as the inducement to the marriage, the marriage would give validity to a gift, which, otherwise, wouid be void as to the creditors.</p> <p>3. A father conveys a large portion of his estate to his sons, without valuable consideration, and directs that they shall execute bonds for a specific sum to a third person, the husband of the donor’s daughter. This is virtually a charge upon the property, and is to be considered as if it was a gift from the father to his son-in-law directly, and the latter is liable to the creditors of the father, for any moneys received by him in satisfaction of such bonds.</p> <p>[Cited in Dold v. Geiger, 2 Grat. 102.]</p> <p>4. T. R. being possessed of a large estate, made a division of it among his, three Bons, A. C. R., I. R. and T. R., and in consideration thereof, directed them to execute their bonds to R. H.. the husband of the donor’s daughter, for £250 each. J. B. obtained a judgment against T. R.. the elder, after the division of his estate. Execution on the judgment was stayed, the plaintiff entering into an agreement with A. C. R., whereby it was stipulated that A. C. R. should pay the debt in three annual instalments. T. R., the elder, and his three sons, all became insolvent before the payment of the said debt. Held, that the stay of execution does not discharge R. H. from his liability to pay to .the creditor any money received by him in payment of the bonds, although, when the judgment was rendered, A. C. R. possessed sufficient property to satisfy it. The principle, that where any indulgence is extended by a creditor to his debtor, and the debtor subsequently becomes insolvent, the creditor loses his recourse against the security, does not apply in favour of a mere donee.</p> <p>5. It seems, that where a father executes a voluntary bond to his son-in-law, the obligee will not be held responsible to the prior creditors of the father, for the money actually received in payment, in whole or in part, of the bond, such voluntary bond not being within the statute of frauds.'</p> <p>6. If several voluntary conveyances are made to different individuals, which are fraudulent as to creditors, the donees will not be held liable, only for the proportions which their respective gifts bear to the debts of the donor, but the whole of every such gift will be subjected to the payment of the debts of the donor.</p> <p>7. T. R. conveyed lands to his three sons, without valuable consideration, who conveyed them away to third persons. Quaere, are the lands in the hands of a purchaser liable to the claim of a creditor of the father? However this may be, the creditor cannot be compelled to proceed against such purchaser, and no decree would be rendered against him, in aid of a volunteer, who was able to pay the debt.</p> <p>[Cited in Pratt v. Curtis, Case No. 11.375.)</p> <p>[Cited in Ringold v. Suiter, 35 W. Va. 190, 13 S. E. 47.)</p> <p>[See note at end of case.] NOTE. The question how far purchasers from a debtor (or his voluntary grantee) are entitled to protection in a court of equity from the claims of the creditors of the grantor, has frequently been the subject of laborious investigation in our courts, and it may not be amiss here to present a brief review of some of the leading cases in which it has been discussed. The question depends upon the construction of the proviso in our statute of frauds, which declares that the act shall not extend to any estate or interest in any lands, goods, or chattels, or any rents, common, or profits out of the same, which shall be upon good consideration, and bona fide, lawfully conveyed or assured to any person or persons, bodies politic or corporate. 1 Rev. Code 1819, p. S73, § 3. This is substantially the same proviso contained in the English statute of 13 Eliz., — Green, J., in Garland v. Rives, 4 Rand. (Va.) 305; and the term “good” consideration has been interpreted to mean “valuable” consideration, — Twyne’s Case, 2 Coke, pt. 3, p. 80; Hodgson v. Butts, 3 Cranch [7 U. S.] 157; 1 Cond. R. 476. In Eppes v. Randolph [2 Call, 183], the court of appeals (by Pendleton, president), “laid down this general proposition, that where a creditor takes no specific security from his debtor, he trusts him upon the general credit of his property, and a confidence that he will not diminish it to his prejudice. He has, therefore, a claim upon all that property whilst it remains in the hands of the debtor, and may pursue it into the hands of a mere volunteer; but not having restrained the debtor’s power of alienation,' if he or his volunteer convey to fair purchasers, they, having the law and equal equity, will be protected against the creditors.” This proposition is cited and recognised as the true exposition of the doctrine by Coalter, J., in Coutts v. Green-how, 2 Munf. 368. And a grantee claiming under a deed made by his father (the debtor), in consequence of a marriage agreement between the father of the grantee and his wife, is a purchaser for valuable consideration, and not a volunteer. Eppes v. Randolph [supra]. Under the proviso of the 13th Eliz., the purchaser, whether from the debtor himself, or his voluntary or fraudulent grantee, was protected, if he had not notice of the fraud of his own grantor; so that the bona fides was required only of the purchaser. And this is the just construction of the Virginia statute. Green, J., in Garland v. Rives, 4 Rand. (Va.) 305. But in the lasts case, the purchaser having had full notice of the fraud, and of the invalidity of the grantee’s title, it was held: that upon general principles of equity, he could acquire no better right than they had; and upon the terms of the statute (13 & 27 Eliz., adopted in our Code) he could not be protected as a bona fide purchaser, but must stand, to all intents and purposes, in the shoes of the grantees. In Coleman v. Cocke, 6 Rand. (Va.) 618, a father purchased land, and took, and retained for several years, possession as the beneficial owner thereof, but the purchase-money was not paid, and the lands were not conveyed to him; and when the purchase-money was paid, the father being greatly indebted, directed the vendor to make the conveyance to his son. The lands were accordingly conveyed to the son, no valuable consideration moving from the son, and the son sold them to a fair and bona fide purchaser, without notice of any fraud. The purchaser was held to be protected from the claims of the creditors of the father by the proviso in the statute.</p> <p>From the above summary it is clear that the doctrine is firmly settled in Virginia, that a fair, bona fide purchaser, for valuable consideration, without notice, is entitled to protection from the claims of creditors, whether the purchase was from the debtor himself, or his voluntary or fraudulent grantee. Some discrepancy of opinion seems, however, to have prevailed between learned judges elsewhere on the construction of these statutes of 13 & 27 Eliz. Thus, in Roberts v. Andersons, 3 Johns. Oh. 377, Chancellor Kent recognises the rule as settled, that a purchaser for a valuable consideration, without notice, from a voluntary or fraudulent grantee, shall be preferred to a subsequent purchaser for valuable consideration, without notice, from the original grantor (under 27 Eliz.). But in relation to 13 Eliz., which was made to protect creditors from fraudulent conveyances, Chancellor Kent said that a different rule of construction prevailed: that the proviso in the act applied only to the original conveyance, and saved it, when made to a bona fide purchaser for a valuable consideration, however fraudulent the intent of the grantor might be, but did not extend to a purchase, however fair, on the part of the purchaser, from the voluntary or fraudulent grantee. Chancellor Kent concurred herein with the supreme court of errors of Connecticut, in Preston v. Crofut, 1 Conn. 527, in the construction of their statute of frauds, which, he said, “was substantially the same as the statutes of Elizabeth.” In Bean v. Smith [Case No. 1,174], Judge Story reviewed the cases of Roberts v. Andersons, and Preston v. Crofut, and expressed the opinion that the proviso in the statute applied to estates derived from the fraudulent grantee, precisely as it did to those derived from the fraudulent grantor; that the statute of frauds had been universally considered as an exposition of the common law, and he regarded his construction of the proviso as in accordance with the principles of the common law. Judge Story’s construction is supported by the opinion of Chief Justice Parsons, in Gore v. Brazier, 3 Mass. 541, and that of Chief Justice Parker, in Trull v. Bigelow, 16 Mass. 418, 419, and seems to be supported by that of Judge Spencer, in the case of Sands v. Hildreth, 14 Johns. 498.</p>

Assumpsit on sundry bills of exchange drawn by the defendant [Joshua Appleby], payable to the plaintiff [C. C. Hopner], or order, on Thomas Street & Co. of Charleston, South Carolina, and protested for non-acceptance and non-payment. The declaration contained the usual averments. Plea, the general issue.

<p>Case No. 6,701.</p> <p>Contracts — Consideration—Claim Need not be. a Valid One — Measure op Damages.</p> <p>1. Where A held a claim against B and C, a promise by B to A that if he, A, would sue C, obtain judgment and levy on his property, he, B, would bid’the amount of the claim, is a valid consideration upon which an action will lie by A against B for refusing so to bid.</p> <p>[See note at end of case.]</p> <p>2. It is not necessary that the claim be a legal or valid claim against B. It is sufficient that he desired it to be prosecuted against C, and- not against himself.</p> <p>[Cited in Hewett v. Currier, 63 Wis. 395, 23-N. W. 884.].</p> <p>3. It seems that full damages could not be recovered unless the debt .was lost in consequence of such failure to bid, or it appeared that' C did not have other property from which the judgment could be made.</p> <p>On trial before a jury verdict and judgment was rendered for plaintiff for the full amount ' claimed, which judgment and the charge of the court to the jury were, on writ of error, sustained by the supreme court (6 Wall. [73 U. S.j 94); [Mr. Justice Swayne holding that an agreement to bid at a judicial sale is not void, as against public policy.]</p>

<p>Case MTo. 6,702.</p> <p>Seamen — -Void Contract — Votage—Smuggling.</p> <p>1. A contract for a voyage which has no terminus is void by law. A voyage must terminate at a certain time or a certain port.</p> <p>2. Smuggling on the part of seamen is a grave offenee, but it is not imperative on the part of the court to forfeit their whole wages, and the law may be satisfied with a fine. ■</p>

[This was a bill in equity by the Horman Patent Manufacturing Company against the Brooklyn City Railroad Company to recover damages for the alleged unlawful use of reissued letters patent Nos. 8013, and 8014, granted to W. H. Horman December 25, 1877, and July 25, 1877, respectively. The original letters patent Nos. 165,832 and 171,-133 were granted July 20, 1875, and December 14, 1875, respectively.]

<p>Case No. 6,704.</p> <p>•Notice — Venditioni Exponas.</p> <p>1. Under Act Cong. March 2, 1799 (1 Stat. 696, § 90); the notice of sale in cases of condemnation under the act must be published every day for fifteen days, in tile newspapers directed by the act.</p> <p>2. Under rules 47 and 48 of the district court, notice of sale under venditioni exponas (except on condemnation of property on seizure by the United States) must be published for six days: and the sale will be set aside if this full number of publications is not made.</p> <p>[Cited in Daily v. Doe, 8 Fed. 912.)</p>

Application to interpose a claim, in admiralty. The steamer Hornet was seized upon a libel of information, founded upon a charge of violating the neutrality laws. J. Morales Lemus, as agent of the so-called “Republic of Cuba,” now applied to be allowed to intervene and interpose a claim ■and contest the suit. The only question now made was as to the propriety of allowing such agent to claim.

In admiralty. Libel by the owners, officers, crew and underwriters of the schooner Equal, against the Hortensia for collision, whereby the former and her cargo and the effects of the officers and crew were lost. The cause was heard upon libel, claim, answer and proof.

<p>[In bankruptcy. In the matter of Joseph H. Horton and others.]</p>

Before the district court of Connecticut, at a recent term, Abner Hendee, the county as-signee in bankruptcy, filed his petition against Lorin P. Waldo, setting forth, that the latter was in the possession of a large sum of money and goods belonging to .Eli Horton, at the time his petition was filed in the district court of the United States; and that the same were assets of the said Horton, praying that the same be restored to the county assignee for the benefit of the…

[This was a libel in admiralty by George W. Horton against Bennet Smith and others, owners of the bark David McNutt, to recover compensation for services as pilot]

This was a bill to enjoin the defendants from taking the plaintiff’s land on the ground that the railroad which the charter authorized the company to build was a mere private road, and that private property could not be taken without the owner’s •consent except for public use. The constitution of New Jersey provides that private property shall not be taken for public use without just compensation.

Petition of James Morrison for an order directing the assignees to pay to him certain moneys alleged to have been in the hands of the bankrupt [Robert Hosie] as his bailee or trustee at the time of the bankruptcy.

This was a rule to show cause why Edwin A. Hoskins should not be released from the custody of the sheriff of the city and county of Philadelphia. It appeared that Hoskins was a resident of Philadelphia, and, having been arrested on a ca. sa. issued from one of the state courts in that city and county, petitioned for the benefit of the bankrupt law.

<p>[This was a bill in equity by John Hosmer against Sherman S. Jewett, assignee in bankruptcy of the Buffalo Fire and Marine Insurance Company.]</p>

Bill in equity for an injunction and relief. The plaintiffs, David Hostetter and George W. Smith, are the proprietors and manufacturers of “Hostetter’s Celebrated Stomach Bitters,”, at Pittsburg, Pennsylvania, and the defendants, three in number, are residents of Omaha, in Nebraska. The bill charges an infringement of the plaintiffs’ trade mark, invented and adopted to distinguish these bitters, and asks for an injunction and for damages.

[This was a petition by a tenant in common against the trustee in bankruptcy of his cotenant, Elia§ Hotchkiss, that the trustee pay all arrearages of rent for which the-bankrupt was liable, or surrender the premises.]

<p>Case No. 6,714a.</p> <p>Collision — Negligence—Lights.</p> <p>[It is an act of blamable misconduct for a vessel to run through a harbor at night time without exhibiting the lights prescribed by law.]</p>

<p>[This was a libel by Russell Hotchkiss and others, owners of the schooner Morelle, against John S. Adriance and others, owners of the steamboat William Young, for loss of the schooner’s anchor and cable.]</p>

Archibald Hotchkiss, for the benefit of B. Dubois, brought an action of debt against Wm. P. Floyd, upon a single bill for $2,428, due January 15, 1838.

[This was an action at law by Julia P. Hotchkiss, executrix of John E. Hotchkiss, John A. Davenport, and John W. Quincy against Miles Greenwood and Thomas Wood, partners in trade under the name of M. Greenwood & Co., to recover for the alleged infringement of letters patent No. 2,197, granted to J. E. Hotchkiss, July 29, 1841.]

<p>Case No. 6,717.</p> <p>Deed — Jurisdiction—Evidence—Certified Copt.</p> <p>1. A deed, fair upon its face, is not objectionable, as a colorable conveyance to give jurisdiction, unless proof be shown aliunde.</p> <p>2. A certified copy of a deed, not authenticated by the seal of the recorder, is not admissible in evidence.</p>

<p>Case No. 6,718a.</p> <p>Collision — Signal Lights.</p> <p>[A schooner standing on her starboard tack in the James river discovered the lights of a steamer 15 minutes before the collision, and did not change her course. She was discovered by the pilot of the steamer in ample time to have avoided the collision, jHeld, the night being clear, that she was not in fault in not exhibiting a signal light, and the steamer should be held liable.]</p>

<p>[This was a bill in equity by Charles B. Hotchkiss, against the Tradesmen’s National Bank, the National Shoe and Leather Bank of the City of New York, and the Milwaukee and St. Paul Railway Company.]</p>

<p>Case No. 6,720.</p> <p>Rescission of Seaman’s Contract •— Contract and Services of Minor — British Shipping Act.</p> <p>1. Where, on a voyage from Glasgow to Bue-nos Ayres, from thence to Portland, Or., and back to a port in the United Kingdom, the cook and steward, who is not a seaman, is dis-rated a few days out from B. A. on a charge of wasting provisions, and put before the mast, it amounts to a rescission of the contract by the master, and the steward may, when he arrives at Portland, accept such rescission, and claim his discharge; but what compensation, if any, he shall have for his services depends upon the particular circumstances of the case.</p> <p>[Cited in The Mary C. Conery, 9 Fed. 223; The Topsy, 44 Fed. 634.]</p> <p>2. A contract by a minor to serve aB a seaman is a voidable one, and may be avoided by such minor at any time before its completion, and thereafter he is not bound by it in any manner, neither can he sue upon it for his services, but may recover the value of such services, allowing for any injury which the owners may sustain Dy reason or tne avoidance or the contract.</p> <p>[Cited in The Topsy, 44 Fed. 636.]</p> <p>3. Where, under the British merchants shipping act of 1854 (17 & 18 Viet. c. 104), the duration of a voyage is described in the shipping articles as probably twelve months, a seaman signing the articles engages absolutely to make the voyage, whether the duration of it be more or less than that period, provided the master in good faith endeavors to accomplish the voyage within the time mentioned.</p>

[This was a suit by John Hough, assignee In bankruptcy, against the First National Bank of Ft. Wayne, to recover certain money paid with intent to give illegal preference.]

<p>Case No. 6,722.</p> <p>False Repkesentations — Rescission op Contract — Equitt Pleading — Principal and Agent — Caveat Emptor.</p> <p>1. Where, in a treaty for the sale of property, the vendor makes material misrepresentations, by which the purchaser, having no knowledge, or means of knowledge, in relation thereto, is actually deceived to his injury, — a court of equity will rescind the contract in pursuance thereof, although it do not contain the misrepresentations; and it matters not, in such a case, whether the misrepresentations be the result of mistake or fraud.</p> <p>[Cited in Person v. Sanger. Case No. 4,752; Seeley v. Reed, 25 Fed. 365.]</p> <p>[Cited in Pratt v. Philbrook, 41 Me. 138; Smith v. Countryman, 30 N. Y. 671; Clark v. Potter, 32 Ohio St. 61; White v. Sutherland, 64 Ill. 191; Durkin v. Cobleigh, 156 Mass. 112, 30 N. E. 474; Colton v. Stanford, 82 Cal. 351, 23 Pac. 16.]</p> <p>2. But where a purchaser relies upon his own judgment, uninfluenced by any misrepresentations, and has full means of knowledge within his reach, a court of equity will not relieve him from his bargain.</p> <p>[Cited in Warner v. Daniels, Case No. 17,181: Ferson v. Sanger, Id. 4,752; Marsh v. Whitmore, Id. 9.122.]</p> <p>[Cited in Port v. Williams. 6 Ind. 222; Gatling v. Newell, 12 Ind. 142; Shaddle v. Dis-borough, 30 N. J. Eq. 381.]</p> <p>3. An answer in equity to facts charged in the bill is to be taken to be true, until the contrary is clearly established.</p> <p>[Cited in Seeley v. Reed, 25 Fed. 364.]</p> <p>4. Where A and B gave a bond to C, conditioned to make a conveyance of certain timber land, provided O should elect to buy the same on certain terms, within thirty days, — or should make a sale thereof within the same time, in which case, only one half of the excess over a certain price was to be paid to A and B, — and C did make sale of the land, and A and B received one half of the excess of the price over the stated sum, and made a deed of conveyance thereof to the purchaser, — it was held, that C was the agent of A and B in the sale, and they were bound by his representations.</p> <p>[Applied in Henderson v. San Antonio, etc., R. Co., 17 Tex. 560.]</p> <p>5. Where C gave a certificate, that certain lands, which he had “partially explored,” contained, “as far as my knowledge extends,” a certain average of timber, and it appeared that the purchasers, to whom it was given, had as full means of knowledge as C, — it was held, that they were not entitled to place implicit reliance thereon, and make it the basis of their contract; but that they should have investigated the grounds of the opinion therein expressed, and the extent of the exploration by C.</p> <p>6. Where a bill in equity was brought to set aside a sale of certain timber lands seven years after the purchase thereof, during which time the agent of the purchaser had made two explorations of the land, and had caused a large quantity of timber to be cut therefrom — it was held, that the purchasers had full knowledge or means of knowledge of the condition of the lands, through their agent, which they were bound to exercise, before cutting down timber, and locating the property as their own; and that the bill was not maintainable after so great a lapse of time, — particularly as it set forth no new discoveries in relation to the quantity and value of the timber,,which might not have been obtained in a single year, and as the evidence was obscured as to material points.</p> <p>[Cited in Warner v. Daniels, Case No. 17,181; Fisher v. Boody, Id. 4,814.]</p> <p>[Cited in Dodge v. Essex Ins. Co., 12 Gray, 67.]</p> <p>7. Whatever is known to an agent is, in contemplation of law, known to the principal, and the latter cannot aver his ignorance thereof.</p> <p>[Cited in Yeazie v. Williams, 8 How. (49 U. S.) 156; Goodenough v. Warren, Case No. 5,534.]</p> <p>[Cited in Brannon v. May, 42 Ind. 101.]</p>

' Application for a writ of mandamus against the superior court of Chicago. O. S. Hough commenced two' suits in the superior court of Chicago against the Western Transportation Company, a corporation created and existing by virtue of the laws of New York, and doing business in Chicago. The corporation filed a plea to the jurisdiction of the court; plaintiff filed replication, and defendant filed general demurrer to replication.

The petitioners hold a long lease of a shop on Washington street, Boston, and on the thirtieth day of May, 1868, they underlet the shop to James Fortune, the bankrupt, for eight years and ten months from the first day of the next June, being two days less than their own term, at a rent which was payable monthly and very largely in advance of what they paid.

<p>Case No. 6,727.</p> <p>BANKRUPTCY — JURAT IX PETITION — FRAUD.</p> <p>1. In the petition to be declared a bankrupt, the date of the jurat is not essential.</p> <p>2. A fraudulent transfer by the petitioner will not prevent his being declared a bankrupt.</p> <p>(NOTE. On the coming in of the proofs, the evidence showed that the obligations had been bought with funds of the father, and the court held them good for their full amount in the hands of the father as against the bankrupt. Case No. 6,728.)</p>

<p>Case No. 6,728.</p> <p>Ba nkruptct — Fictitious Debt.</p>

[In the matter of S. S. Houghton, a bankrupt.) The case is now heard on the questions submitted. Held: certain persons, who wished to use the votes of the girls, procured their debts to be proved in due form before a register. Upon each proof was a certificate by that officer that the fees paid by the creditor amounted to one dollar and twenty-five cents, for which there was a priority of payment, under section 28 of the bankrupt act.

<p>[In bankruptcy. In the matter of S. S. Houghton.]</p>

<p>Case No. 6,731.</p> <p>Shipping — Chabteh to Carry Chinese Coolies —Validity and Construction — Estop-pel — Custom.</p> <p>[1. The charter of a ship to carry Chinese coolies from China to a foreign country was not void, on the ground of immorality, before American vessels were prohibited by act of congress from engaging in it: for the fact that the business is subject to abuses is no evidence that it is immoral in itself.]</p> <p>[2. The fact that persons who chartered a ship for the purpose of carrying Chinese coolies caused her to be surveyed, and a diagram made and delivered to the captain, showing the number of passengers she could carry according to the regulations of the act of congress, does not of itself limit the charterers to that number, in the absence of any evidence that such diagram was made a part of the contract]</p> <p>[3. The provisions of the general passenger act (10 Stat. 715, § 1), limiting the number of passengers which vessels may carry, apply only to vessels bringing passengers into this country, and do not affect American vessels carrying passengers from one foreign country to another: hence the use of the words "lawful passengers.” in the charter of a ship for the purpose of carrying passengers between foreign countries. must be understood to refer to such description and number of persons as by law could be carried between the countries where the voyage was to begin and end.]</p> <p>[4. A ship was chartered to carry coolies from China to the West Indies, but on arrival in China a dispute arose between the charterers and -the master as to the number of passengers which the charterers were entitled to put on board. The matter was thereupon referred to the American commissioner in that port, who decided that the ship must be restricted to the number authorized by the general passenger act (10 Stat. 715, § 1). Edd, that this decision was no bar to the maintenance of a suit by the charterers to recover for alleged breach of the charter party in limiting the number of passengers.]</p> <p>[5. A provision in a charter party that the vessel shall carry “all such lawful passengers" as charterers’ agent shall think proper to ship, must be construed reasonably, and means a reasonable number only, haring regard to comfort and safety.]</p> <p>[6. A custom in the particular business (the ■Chinese coolie traffic) of overcrowding vessels could have no binding effect in the construction of the charter, so as to require the vessel to carry such a number as would be dangerous to life and health.J</p>

Action on the case [against Stephen Girard,. administrator of John Girard]. The declaration contained a count, upon account stated, in April, 1803; a count for goods sold, and the usual money counts. Pleas, payment,, with leave, non assumpsit.-and fully administered.

<p>[In the matter of Doris Housberger and Gustav Zibelin, bankrupts.]</p> <p>By the Register:</p> <p>2 [I, Edgar Ketchuin, one of the registers-of said court in bankruptcy, do hereby certify that in the course of the proceedings in said cause before me, the following question arose pertinent to the said proceedings, and is stated and agreed to by James Davis, the assignee, who appeared in person on his own part, and on the part of the creditors of the said bankrupt.</p> <p>[The assignee having been duly appointed on September 1st, 186S, and having on September 3d, received from the register assignment in due form, applied to the sheriff of the city and county of New York, for certain goods which had been taken by him under attachment issued June 8th, 1868, (the petition herein having been filed the 10th day ■of June, and the register having on the 18th of June received petition and schedules, ■and having on the 19th of June demanded the said goods of the sheriff, who then refused' to deliver up the same,) and the sheriff having presented to the assignee a ■bill as follows: “Common Pleas, Raphael ■Goldsmidt against D. Housberger & Zibe-lin. Attachment issued June 8th, 1868, for eight hundred and fifty-six dollars and seventy-five cents. Sheriff charges, paid for cases, ten dollars. Keeper’s fees, seven days and six nights, sixty-five dollars. Serving papers, two dollars and sixty-nine cents. Labor, ten dollars. Compensation to deputy, ten dollars. Total ninety-seven dollars and sixty-nine cents;” and having refused to deliver up the goods until such bills should be paid, the assignee asked the sanction of the register to its payment, which the register declined to give, whereupon the assignee requested certificate thereof to the court, which is now made accordingly.</p> <p>[By the fourteenth section [of the act of 1867 (14 Stat. 522)] the assignment relates back to the commencement of proceedings in bankruptcy, and title vests in the assignee although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment, etc. The creditor failing in his action, must of course pay his own costs, and part of these is the sheriff’s bill. And in all cases where this officer fails to collect his costs of the defendant, he looks to the plaintiff and his attorney for them. Why should the creditors at large be required to bear these costs for the benefit of the attaching creditor? It is true that in a state court when the property is relieved from the attachment the lien of the sheriff upon the goods for his costs is recognized, and they must be paid upon their liberation, the question of costs being one to be settled between the parties to that action •at the end of the litigation. But here the attachment is dissolved, and the claim of the plaintiff is postponed, and the costs of his attorney are left, like his claim, without satisfaction, because all preference is disallowed; as well might the attorney say, that his costs shall be paid upon legal procedure well-founded, as the sheriff say that he has a lien upon the goods for his costs ■under the attachment now dissolved, for which costs both the plaintiff and his attorney are responsible to the sheriff, without any pretence that they are unable to pay them in this case. It sometimes happens that there are a series of attachments, and it may be conceived that so many would be issued to engulf, in sheriff’s costs upon them, whatever assets there might remain for the creditors at large. If, then, the sheriff’s costs are to be allowed as a lien upon the goods, nothing may remain for the creditors at large of the bankrupt, although each creditor issuing his attachment may be perfectly responsible and abundantly able to pay the costs in his case. For these reasons I am of opinion that upon the dissolution of the attachment provided for as above, the property may be taken by the assignee, free from any lien of the sheriff for his costs, and that he must look to the parties upon whose action he proceeded.) 2</p>

[In the matter of the petition of the creditors of Samuel A. House.] This was an application by a creditor for an involuntary decree, and came before the court on the report of Mr. Commissioner Campbell. The principal question for adjudicating upon was whether an assignment, made and executed by the debtor, amounted to a preference, and was given in contemplation of bankruptcy.

This was one of several actions upon the case, tried, upon submission, by Judge SHERMAN, and brought to recover damages for the infringment of letters patent [No. 38,389] for “improvements in electric baths,” granted to plaintiff [Mark W. House], May 5, 1803. The defendant [Jennie Young] claimed under letters patent for “improvement .in electro-magnetic bathing apparatus,” granted to her husband, James Young, May 14, 1861, and reissued June 28, 1864.

This was a suit brought in the district court for the county of Galveston by Henry Houser against W. T. Clayton and A. Hei-denheimer, to recover damages for an alleged trespass by unlawfully entering the house of the plaintiff in Galveston, searching the same in a rough and violent manner, and terrifying his family.

This case came up on exceptions to the report of the commissioner to whom the case was referred under the rules of January-term, 1859. The action was brought by [Alfred H. Hovey], the owner of the canal boat • Atlantic, to recover the damages occasioned by her being run into by the Skiddy on the Hudson river. The boat was in tow of the steam tug Illinois. There was a fog up-

This was an action on the case, brought by William Hovey, of Worcester, against Erastus Henry, of Woodstock, Connecticut, for an infringement of the plaintiff’s patent for an improvement in the “straw cutter.” The patent [No. 3,431] was dated February 12th, 1844.

<p>In bankruptcy.</p>

[This was a libel by Alfred H. Hovey against the steamboat Sarah E. Brown to recover damages for a collision.] The case came up on exceptions to the commissioner’s report. The action was for injury done by the steamboat to a vessel called the Mist, then in the possession of the libelant, and to the merchandise put on board her by its owners, and committed to the libelant’s charge as a common carrier.

This was a bill in equity, filed April 14th, 1840, for an injunction against the defendant [Silas Stevens] not to make or use a machine “for grinding tools,” for which a patent had been taken out by the plaintiff [William Hovey], September 23d, 1845 [No. 4,204; reissued June 19, 1847, No. 96].

<p>Case No. 6,747.</p> <p>Bankruptcy — Power op Court — Orders op.</p> <p>The bankrupt court has power to order a bankrupt to pay over to the assignee sums which, apparently, are in his hands.</p> <p>[Cited in Re McKenna, 9 Fed. 29.]</p>

<p>Case No. 6,748.</p> <p>.Bills and Notes — Increase of Liability Br Indorsement — Parties to tue Contract — Rights of Assignee — Statute of Frauds — Consideration.</p> <p>1. An indorser of a note who increases his liability, by indorsement, beyond what the law Implies, is to be considered as a guarantor. And this new contract can only be enforced between the parties to it.</p> <p>2. It does not pass to any subsequent as-.-signee. The late decisions in England require an agreement to pay the debt of another to ¡state in it the consideration.</p> <p>3. Under the statute of frauds, the consideration is a part of the agreement, which must be in writing. Prior to these decisions the rule was otherwise. And the latest decisions seem not very strictly to sustain this construction.</p> <p>4. In this country the weight of authority •does not coincide with the English rule. But in this ease the guarantors are the holders of the note, and their guaranty is a part of the •transfer of it, which imports a consideration.</p> <p>[Cited in Perrj- v. Swasey, 66 Mass. (12 Cush.) 38; Clay v. Edgerton, 19 Ohio St. 553.]</p> <p>[This was an action on a promissory note by Calvin W. How & Co. against Kemball .and others.]</p>

In this case, a motion was made by Mr. Pettit, who appeared for the defendants, to quash the writ on the following grounds: (1) Because the declaration varies from .the writ. (2) Because the writ is in case, and the endorsement on it is special, on a promissory note and bail required. (3) The writ is too general, being simply trespass on the case.

By R. STOCKETT MATHEWS, Register: I, the undersigned, having been designated by the court as the register in bankruptcy, before whom the proceedings in the above matter of the bankruptcy of Howard, Cole & Co. are to be had, do hereby certify, that in the due course of such proceedings the following questions pertinent to the same arose, and were stated and agreed to by Chapman, Lyons. Smith & Co., of New York City, and Walter B. Brooks, assignee in the above matter.

<p>Case No. 6,761.</p> <p>Bankruptcy — Proof of Debts — Failure of Consideration.</p> <p>A. sent certain notes to B., which were endorsed by C., to be discounted and the proceeds placed to his (A’s) credit. He drew against them by certain drafts in favor of C., which B. failed to pay. C. was subsequently adjudged a bankrupt, and B. sought to prove his claim against the bankrupt for the notes sent to him by A., but the assignee refused to allow it. On the petition of B. to review the action of the assignee in refusing to allow the claim to be proved, the court held, that inasmuch as the drafts were not paid, B. had no right to retain the notes, and, therefore, there was a failure of consideration. Claim rejected.</p> <p>[See Case No. 6,750.]</p>

<p>Case No. 6,762a.</p> <p>Salvage Compensation —Illiberal Conduct of Salvohs — Professional Wreckers.</p> <p>[1. Salvors who adopt a liberal course of conduct towards a vessel in distress, tendering their services promptly and without stipulations or conditions, and acting gallantly and with alacrity, are entitled to a more liberal reward than those who either wait to be called upon for assistance, or refuse to render it unless the vessel is placed in their charge as security for compensation. The latter attitude is especially worthy of condemnation, and the master who would yield to such a demand, under any circumstances short of total loss, would prove unworthy of his trust]</p> <p>[Cited in The Angeline, Case No. 385.]</p> <p>[2. A wrecking master and his crew boarded a vessel aground on the Florida Reef, and offered to assist in unloading her. The master answered that he did not want his vessel unloaded, as he thought he could get her off without it. He asked, however, that the wrecking crew might “lend a hand” in getting out an, anchor. The wrecking master replied that he had no control over his men, and they might assist if they wished to, and his crew then refused to h«lp unless the stranded vessel were given up to them. Meld, that the wrecking master’s conduct was aggravated by his statement that he had no control over his men, for such control is the only security which the owner has for valuable property necessarily coming into the hands of wreckers in the course of their business.]</p> <p>[3. Twenty-five per cent., upon a valuation of $35,391, allowed to several wrecking vessels, and their officers and crews, for rescuing, in partially damaged condition, a vessel and cargo stranded upon Florida Reef.]</p>

<p>Case No. 6,753.</p> <p>Right to Costs — State and Federal Statutes —Removed Cases.</p> <p>[This was an action by Julius F. Howard against the American Dairy & Commercial Company of New York City. Heard on 1 motion of defendant to set aside the verdict of the jury and to grant a new trial.]</p>

<p>[This was a suit by James Howard against Robert Christy to recover damages for the-infringement of two patents.]</p>

This was an action [by George W. Howard against Crawford county] to recover interest due on bonds of defendant, issued to the Pittsburgh and Erie Railroad Company, and by them transferred to plaintiff.

<p>Case No. 6,758.</p> <p>Bankruptcy - Payment to Bankrupt without Actual Notice — Remedy op Assignee.</p> <p>1. H., who was a debtor to a bankrupt at the time of the commencement of the proceedings in bankruptcy, thereafter and before the adjudication of bankruptcy paid the debt to file bankrupt, without any actual notice or knowledge of the pendency of the bankruptcy proceedings, and in the usual course of business, but the money thus paid did not come to the hands of the assignee in bankruptcy. The assignee brought suit against H. to recover the debt: Held, that the suit could be maintained.</p> <p>[Cited in Sieard v. Buffalo, N. Y. & P. R. Co., Case No. 12,831.]</p> <p>2. Whether the district court can try an action at law otherwise than by a jury, suggested.</p> <p>[See Babbitt v. Burgess, Case No. 693.]</p> <p>[Error to the district court of the United States for the Northern district of New York.]</p> <p>[This was an action of debt by John Crompton and others, assignees in bankruptcy of A. Miller & Co., against Jacob R. Howard and others. The district court gave judgment for plaintiffs, and defendants bring error.]</p>

This was a motion made by the Milwaukie and Minnesota Railroad Company, for an order discharging a receiver, and transferring to it possession of a certain section of railroad, upon its paying, within a short day, the sums now due upon it. The railroad which is involved in this matter is ninety-five miles long, and extends from Milwaukie to Portage. It is a part of a railroad built by the La Crosse and Milwaukie Railroad-Company.

The plaintiff [Charles Howard] sought to recover from the defendant [the Milwaukee & St. Paul Railway Company] the possession of a strip of land about eighty feet in width, occupied by defendant as a road-bed and right of way for its railroad, and extending from the south end of block 41, in the second ward of the city of Milwaukee, to a point where the same crosses the west line of the town of Granville, in Milwaukee county.

In the beginning of February, 1873, George S. Prince, a manufacturer of tobacco in Richmond, Virginia, applied to his father, John D. Prince, of Brooklyn, New York, for $2,000, offering to mortgage the fixtures in his factory to secure the amount, or to make an absolute bill of sale of the fixtures.

C. H. North & Co., having failed, filed their petition in bankruptcy in March, 1876, and soon after offered a composition of fifty per cent, which was accepted and recorded in April.

<p>[This was a libel .in rem against the ship Howden to recover damages for the delivery •of her cargo in damaged condition.]</p>

<p>Case for the infringement of a patent. The suit was brought on a patent [No. 31] granted on the 18th day of March, 1841, to the plaintiff, Elias Howe, assignee of Joseph C. Smith (the asserted original inventor.) The invention was described in the letters patent, to be “a new and useful improvement in the application of a material called ‘palm leaf,’ or ‘brub grass,’ to the stuffing of beds, mattresses, sofas, cushions, and all other uses for which hair, feathers, moss, or other soft and elastic substances are used.” The letters patent stated, that the invention was originally secured by letters patent, dated on the 3d of March, 1833, to Joseph 0. Smith, and that these latter letters patent had been can-celled on account of a defective specification, and the present letters granted to Howe, as his assignee, upon such cancellation. The breach alleged was an unlawful making and using of the invention. The defendant [Ebenezer E. Abbott], pleaded the general issue, with notice of special matters of de-fence.</p> <p>The specification annexed to the letters patent was as follows: “To enable others skilled in the art to which this appertains to make and use my invention, I shall now proceed to describe the method of preparing or manufacturing the same. The first operation is to reduce the palm leaf, or brub grass, to filaments or fibres, sufficiently fine to be spun, which filaments or fibres I then spin, and form into a rope; which should be twisted as hard as possible, so as to kink, or cause the rope to form in balls or coils. This spinning and twisting should be done upon machines similar to those used for spinning and twisting hemp. After the aforesaid process of twisting is completed, the coils, balls, or twisted hanks, should be placed in a steam, or any other kind of oven, where they should be baked to such a degree, as to permanently fix the curl or twist in the fibres or filaments.' When this effect is properly produced, the coils should be untwisted; which operation may be effected by a reverse motion of the same machinery by which it is twisted. After passing through these several preparative processes, the fibres of palm leaf or brub grass are left in a light, and durably elastic, and curly state, and are suitable for stuffing any of the various articles herein above enumerated. I shall claim as my invention the process of preparing or durably curling palm leaf, or brub grass, by reducing the leaf to small filaments, or fibres, and likewise spinning, baking or steaming, and untwisting the same; the whole operation being substantially as herein above described, and for the purpose above specified. Elias Howe. Witnesses: R. H. Eddy. Ezra Lincoln, Jr.”</p> <p>At the trial it appeared in evidence, that the mode stated in the specification for spinning and curling the palm leaf, after it was reduced to filaments or fibres, was precisely the same process, by the same machinery, as had long before been, and now was used to spin, and twist, and curl, hair stuffing for beds, mattresses, sofas, cushions, &c. But it did not appear, that the palm leaf was ever actually spun or curled in this way, for the purpose of stuffing beds, &e., until about the time when the original patent to Smith was granted. There was also evidence to show, that, in point of fact, Smith did not invent the application. But that, a short time before the original patent was granted, Smith carried some of the palm leaf, cut into strips and filaments, to the shop of one Jonathan D. Bosson, a manufacturer of curled hair for beds, &c., in Roxbury; and Bosson showed him, how it might be spun and curled for beds, &p., and actually did spin and curl some of it in Smith’s presence by his own hair machinery; and that Smith immediately returned home, put the same process in operation, and obtained his original patent. Smith (who was examined as a witness for the defendant) admitted, that he had carried the palm leaf to Bosson’s shop; but he denied, that Bosson told him how to spin and curl it, or that he spun or curled it, on his machinery, as Bosson had stated. There was other evidence to show, that long before Smith’s supposed invention, and at least ten or twelve years ago, the same process had been applied by other manufacturers of curled hair to other grasses and vegetable substances, viz., to manilla grass, to common sedge, to sisal grass, and to a substance called “coir,” of which sofas are made. It was also proved, that the defendant did not bake or steam his palm leaf, after it was stripped, and spun, and curled; but stopped his process with the mere spinning and twisting. All the witnesses concurred in opinion, that the process was far more sure and perfect, so far as the curling was concerned, by baking or steaming the palm leaf after it was spun; and they thought it so essential, that the defendant’s process would be defective in attaining the object, and that the curls would not be permanent without it.</p> <p>insisted: (1) That the patent was not valid, because it was not for any new process, but merely for preparing palm leaf, to produce certain results by an old method. (2) That the patent, according to the specification, was for a combination and an entire process; and that the defendant did not use the whole combination or entire process, but a part only, which was well known and in use before.</p> <p>contended, a contra, that the objections were not well taken.</p>

<p>Case No. 6,767.</p> <p>Practice at Law — Creditors’ Bills — Time of Piling.</p> <p>1.Under the statute of Michigan, a credit- or’s -bill may -be filed on the return of an execution by the proper officer nulla bona before the return day named in the writ.</p> <p>2. The assignees may show that the defendant in the judgment had property.</p> <p>3. This is more a question of practice, on general principles, than of construction.</p>

[This was a libel in rem by William L. Howe and Benjamin C. Cummings against the schooner Lexington, for failure to deliver goods under the terms and conditions of a bill of lading.]

[This was a libel in rem by William L. Howe and Benjamin C. Cummings against the schooner Lexington for failure to deliver goods under the terms and conditions of a bill of lading. A decree was rendered for the libellants (Case No. 6767a), and the cause referred to a clerk, to take further proofs on the question of value. To the clerk’s report the libellants filed exceptions.]

<p>Case No. 6,769.</p> <p>Patents — Infringement—Additions or Modifications — Foreign Patents — Injunction-Bond of Indemnity.</p> <p>1. No matter what additions to, or modifications of, a patentee’s invention a defendant may have made, if he has taken what belongs to the patentee he has infringed, although with his improvements the original machine may be much more useful.</p> <p>[Cited in McComb v. Brodie, Case No. 8,708; Converse v. Cannon. Id. 3,144; Strobridge v. Lindsay, 2 Fed. 694.]</p> <p>2. Howe’s first claim is substantially the same as if he had said: “I claim the forming of the seam by a combination and arrangement of parts as hereinbefore described,” i. e., of the parts necessary for the accomplishment of the end.</p> <p>3. Where the want has always existed, and not only existed but been pressing, and it is said that an old instrument would always have answered the want, the improbability is so great as to require strong evidence to overcome it.</p> <p>4: A foreign patent, to destroy a patent granted in this country, must have been granted before the invention here, not merely before the application for letters patent.</p> <p>5. An invention is not “patented” in England within the meaning of the acts of congress until the specification is enrolled. The enrolled specification takes effect only from the date of its enrollment, and not from the date of the filing of the provisional specification.</p> <p>(Cited in Goff v. Stafford, Case No. 5,504; American Diamond Rock-Boring Co. v. Sheldon, Id. 297; Ireson v. Pierce, *39 Fed. 798.)</p> <p>6. A patent having but six months to run, the defendants were allowed to give bond with sureties to account and pay damages, if any were awarded, in lieu of a preliminary injunction.</p> <p>[Cited in Potter v. Whitney, Case No. 11,341; Morris v. Lowell, Id. 9,833; Hoe v. Boston Daily Adv. Corp., 14 Fed. 916.)</p> <p>7. The defendant will be allowed to give bond with security to account, etc., when his machine embraces improvements which could not be used without using the original invention of the patentee upon which they were ingrafted.</p> <p>[Cited in Consolidated Roller-Mill Co. v. Coombs, 39 Fed. 803; Campbell Printing-Press & Manuf’g Co. v. Manhattan Ry. Co., 49 Fed. 933.)</p> <p>[For claims of the patent of Elias Howe, Jr., see Howe v. Underwood, Case No. 6,775. Por other cases involving this patent, see Howe v. Williams, Case No. 6,778, and Hunt v. Howe, Id. 6,891.]</p>

<p>Case Ho. 6,771.</p> <p>Patents — Prior Public Use and Sale — Application and Issue — Abandonment—In-phingement — Injunction.</p> <p>1. Where the patentee made public use and sale of his invention for less than two years before his original application for a patent, but. subsequently, and more than two years after such public use and sale, withdrew such application, and filed a second one, upon which the patent was granted — held, that the continuity of the application was not necessarily destroyed; and. in the absence of proof of abandonment or dedication, the patent was not avoided by reason of the public use and sale, for more than two years before the final application.</p> <p>[Cited in Weston v. White, Case No. 17,459.]</p> <p>2. The question as to whether the “continuity” of the application is destroyed by the filing of a new application, is, in an action at law. one of fact for the jury.</p> <p>[Cited in Smith v. Sands, 24 Fed. 472.]</p> <p>3. When the user and not the maker and vender of an infringing machine is sued, an injunction ought not to issue, if the case is at all doubtful, or unless the balance of inconvenience is clearly on the side of the complainant.</p> <p>4. The fact that the plaintiff grants licenses at a fixed sum, and that the defendant is a mere user, although a circumstance to be considered, has not, in the first circuit, been considered sufficient reason to refuse the writ, excepting in combination with other circumstances. either of doubt as to title or of hardship in the operation of the injunction.</p> <p>[Cited in Consolidated Roller-Mill Co. v. Coombs, 39 Fed. 805.]</p> <p>[For other cases involving the so-called patent of the defendant, see, ns to infringement, Eames v. Godfrey, 1 Wall. (68 U. S.) 78, and as to application and issue, Godfrey v. Eames, Id. 317.]</p>

This action was debt, brought on the 14th of December, A. D. 1830, by the United States, in the name of Howe & Howard, on a judgment recovered against Abiel Wood, at a court of common pleas, holden at Boston, in the commonwealth of Massachusetts, on the first Tuesday of January, A. D. 1821, for $4,663.31, the whole of which judgment was, on the 2d day of September, A. D. 1S30, duly assigned to the United.

This was an action of debt, brought by the United States, and for their sole benefit, in the name of Howe & Howard, on a judgment recovered by the said Howe & Howard against Abiel Wood, in January, 1821,' which judgment the' said Howe, acting for himself, and as attorney of the said Howard, on the 22d of September, A. D. 1830, assigned to the United States, and the said Howard, on the 30th of October, 1830. assigned all his interest therein to the said Howe; and authorized…

<p>Case No. 6,776.</p> <p>Patents — Infringement—Experiments—Sewing Machines.</p> <p>1. There is no evidence in this case that leaves a shado-w of doubt, that, for all the benefit conferred upon the public by the introduction of a sewing machine, the public are indebted to Mr. Howe.</p> <p>2. A machine, in order to anticipate any subsequent discovery, must be perfected — that is, made so as to be of practical utility, and not merely experimental, and ending in experiment. Until of practical utility, the public attention is not called to the invention; it does not give to the public that which the public lays hold of as beneficial. ></p> <p>3. If an invention is an experiment only, and ends in experiment, and is laid aside as unsuccessful, however far it may have been advanced, however many ideas may have been combined in it, which, subsequently taken up, might, .when perfected, make a good machine — still, not being perfected, it has not come before the public as a useful thing, and is, therefore, entirely inoperative, as affecting the rights of those coming afterward.</p> <p>[Cited in Cook v. Ernest, Case No. 3,155; Gottfried v. Phillip Best Brewing Co., Id. 5.033; Allis v. BuckstafE, 13 Fed. 890; Thayer v. Hart, 20 Fed. 694.]</p> <p>4. Though a prior inventor has gone to a certain extent, if he fall short of making a complete machine, practically useful, those who come after him may secure to themselves the advantages of his invention. The first invent- or gave nothing to the public.' His so-called invention was only an idea, never carried out in a machine that could anticipate one subsequently invented.</p> <p>[Cited in Goodyear Dental Vulcanite Co. v. Folsom, 3 Fed. 512; Washburn & Moen Manuf’g Co. v. Haish, 4 Fed. 904; Dreyfus v. Schneider, 25 Fed. 481; Kittle v. Hall, 29 Fed. 516; Electrical Accumulator Co. v. Julien Electric Co., 38 Fed. 127.]</p> <p>[For other cases involving this patent, see Howe v. Morton, Case No. 6.769: Same v. Williams, Id. 6,778; and Hunt v. Howe, Id. 6,-«91.]</p>

<p>Case No. 6,777.</p> <p>Promissory Notes — Actions on — Payable in Depreciated Currency — Rights of Creditor.</p> <p>1. Notes given in Illinois for collection, the proceeds to be applied to the payment of a debt in New York, which notes from the usage and condition of the country, could only be collected in Illinois currency, which was greatly below par in New York; although no special arrangement was made on the subject, the New York creditor is not bound to receive the Illinois notes, but may require the payment to be made in New York in par funds.</p> <p>2. The agent who made the collections will be allowed his reasonable expenses where suits were brought, commission and the rate of exchange. The agent was one of the New York creditors who were to receive the money collected in proportion to the amount of their claims, but acting as agent for the other New York creditors he is competent, as their agent, to prove the payments to them, under the contract.</p>

<p>Case Mo. 6,778.</p> <p>Patents — Improvement in Sewing Machines— Jury Issues — Matter not Set up in Answer —Admissibility on Final Hearing — Infringement op Renewed Patent — Similar Devices.</p> <p>1.Original bill filed during the term of the original patent. Patent having been extended pending the suit, a supplemental bill was filed; extended patent having been surrendered, and reissued, the suit still pending, a second supplemental bill was filed, upon which the cause came on for final hearing. Letters patent to Elias Howe, Jr., for “improvement in sewing machines,” granted September 10, 1846, extended for seven years, from September 10, 1860, and reissued March 19, 1861, examined and sustained.</p> <p>2. A motion for jury issues is sometimes granted where the patent is recent, and where the case shows that the originality of the invention is doubtful, or where the merits of the controversy chiefly depend upon contradictory evidence, involving the credibility of witnesses. But where the patent is of long standing, and the inventor has had an exclusive possession under it, the motion for a trial, at law, is seldom received with any favor.</p> <p>3. The motion for jury issues ought not, in general, to be granted where it appears that a trial at law and a hearing in equity have already been had, and that both have resulted in favor of the complainant</p> <p>4. Machines not set up in the answer as matters of defense, cannot be introduced in proof, or be considered upon final hearing.</p> <p>51 It is no justification of the infringement of a renewed patent that the infringer had used the invention with impunity before the patent was amended.</p> <p>[Cited in Jones v. Sewall, Case No. 7,495; McWilliams Manuf’g Co. v. Blundelí, 11 Fed. 421.]</p> <p>6. Devices used by a defendant, differing in form and having different names from those employed by the patentee, but arranged and combined in the same way, performing the same functions, having substantially the same mode of operation, and producing the same result, are infringements of the patent</p> <p>[For other cases involving this patent, see note to Howe v. Underwood, Case No. .6,775.]</p>

<p>Motion for a rule.</p>

<p>[Action by Martin A. Howell against the Hartford Fire Insurance Company. Plaintiff moves for a new trial.]</p>

<p>Case No. 6,780.</p> <p>Fire Insurance — "Warranty — Execctort Un-DERTAKINO — FrAÜH—PROOF THEREOF — PREPONDERANCE of Evidence — Testimony of Accomplices.</p> <p>1. The application stated that there was being constructed a force pump, etc. It was dated on the 25th of May, and the fire occurred on the 3d of October the same year. Eeld,. that this was not a warranty on the part of the plaintiff, but only an executory undertaking, and the defendant could have protected itself "by rescinding the contract after making a demand on the plaintiff to have the pump put in working order, and, no demand having been made, there was no breach of warranty. Eeld. that where the policy contains this clause, “All fraud or attempt at fraud on the part of the ■assured shall cause a forfeiture of all claims ■under this policy,” the question of fraud is to "be decided by a preponderance of evidence, and the rule in civil cases is to be followed.</p> <p>2. The charge that the plaintiff burned or caused to be burned the property insured, must he satisfactorily proved, and though not so as to exclude all reasonable doubt, yet the weight -of evidence must be in favor of the defendant, to vitiate the policy.</p> <p>3. In weighing the testimony of parties who •state that they were accomplices of the plaintiff in the alleged arson, the jury should consider the motives they may have had in falsely charging the plaintiff with the crime, whether their statements are consistent and true, whether it agrees with the statements of other witnesses, and whether the character of these witnesses is such that they would be fit instruments for such a crime.</p> <p>4. The evidence of these accomplices must be supported by extrinsic facts and circumstances.</p> <p>5. Any proof of fraud in the valuation of the property insured would vitiate the policy.</p> <p>[Cited in Shaw v. Scottish Commercial Ins. Co., 1 Fed. 765.]</p> <p>6. The offer of counsel to allow the jury to •examine a hotel register by means of a micro-Bcope during the argument was made too late, and should have been made before the evidence was all in.</p>

<p>Case No. 6,781.</p> <p>Marine Insurance — Sale by Master as under Necessity — Abandonment, When Justified.</p> <p>[1. A salé by the master as under necessity cannot bind the underwriters, unless the circumstances antecedent to the sale are such as to authorize an abandonment.]</p> <p>[2. There is no right to abandon under policies which fix the value of the ship, when the estimates of repairs do not exceed one-half of such valuation.)</p>

Ejectment [by Martha Howell against Heni-y Saule and others]. Plea, the general issue. Both parties claimed the estate in question, under Martha Brown, wife of Elisha Brown.

[Appeal from the district court of the United States for the district of Connecticut. [This was a suit by Alfred Todd and another, assignees in bankruptcy, against Theodore P. Howell and others, to set aside a note and mortgage as in fraud of the bankrupt law (14 Stat. 517). The district court rendered judgment for complainants, • and defendants appealed.]

<p>Case No. 6,784.</p> <p>Power of Court to Refer Suit to a Referee —Consent of Both Parties.</p> <p>1. This court has no authority to refer a suit at common law to a referee for trial, without the consent of both parties to the suit.</p> <p>2. Such authority is not conferred by section 5 of the act of June 1, 1872 (17 Stat. 197), now section 914 of the Revised Statutes of the United States, although, in a like suit in the courts of the state of New York, there might be such a reference without the consent of both parties.</p>

<p>Case No. 6,786.</p> <p>Negotiable Paper — Attorney’s Fees — Conflict-of Laws.</p> <p>1. An instrument in writing, purporting to-be a promissory note, is none the less a promissory note because it contains a stipulation to pay attorney’s fees, if suit be instituted on the-note.</p> <p>[Cited in Wilson Sewing Mach. Co. v. Moreno, 7 Fed. 808; Merchants’ Nat. Bank v. Sevier, 14 Fed. 663; Farmers’ Nat. Bank v. Sutton Manuf’g Co., 3 C. C. A. 1, 52 Fed. 195.]</p> <p>[Cited in Benn v. Kutzschan (Or.) 32 Pac. 764; Trader v. Chidester, 41 Ark. 242; Dorsey v. Wolff, 142 Ill. 592-597, 32 N. E. 495.) [See Bank of British North America v. Ellis, Case No. 859.]</p> <p>2. In the construction of contracts, any interpretation or construction applicable or incidental to their performance should be governed by the law of the place of performance, while such as go to their execution or validity should be determined by the law of the place where they are made.</p> <p>3. A paper writing for the payment of money in Missouri was executed in .Kansas. By the law of Missouri, such writing was not negotiable; by the law of Kansas, it was: Held, that the paper was negotiable.</p>

Action by the Howe Machine Company against Hadden, Good, and Eisher on four notes of $500 each, executed by Hadden to Good. The latter assigned the notes by in-dorsement to Fisher, who afterwards assigned them by indorsement to Good, who assigned them by indorsement to plaintiff. The third note was past due before any of the indorsements were made on it.

<p>[In bankruptcy. In the matter of Beuben W. Howes and Charles A. Macy.]</p>

<p>Case No. 6,789.</p> <p>Patents — Improvement in Grain Sepabatoks and Scourers — Abandonment to Public —Rejected Application.</p> <p>1. The reissued letters patent granted to Simeon Howes, Gardner E. Throop, Alpheus Babcock, Norman Babcock and Carlos Ewell, March 5th, 1872, for an “improvement in grain separators and scourers,” and extended for ¿seven years from March 16th, 1872, the original patent having been granted to Howes and Throop, March 16th, 1858, are valid.</p> <p>2. The first claim of said reissue, namely, ■“The combination with a suction fan, scouring mechanism, perforated inclosing shell, and outer tight casing, of a draught passage connecting the chamber outBide of said perforated shell directly with the fan case, said passage being provided with auxiliary air inlets or openings, •substantially as and for the purpose set forth,” is infringed by a machine which embodies m combination all the elements which make up -such claim, they being combined in substantially the same way and for the same purpose, and having the same combined mode of operation as in the patent, although in the infringing machine the direction of the current is at first reversed, and the refuse is carried through an opening in the inner wall, and then through an auxiliary fan into another upward passage, to reach the main fan, instead of, as in the patent, being at first carried directly upward through the draught passage, to reach the main fan, and although, in the infringing machine, the increased supply of air. is brought into the inside of the scourer, and through the perforations into the annular space between the scourer and the outer casing, instead of, as in the patent, ■coming through auxiliary air inlets in the bottom of the outer casing.</p> <p>8. The application for the patent was filed in January, 1855, and rejected in March, 1855. In June, 1856, the inventors filed a paper stating that they withdrew their- application, and requesting the return of $20. The withdrawal was made for the purpose of filing a new application. The $20 was refunded in June, 1856. At that time one of the inventors directed E., a patent agent, to prepare a new specification. E. neglected to do so till April, 1857. At that time a new specification was sworn to by both inventors, and sent to E. with his fee, and the patent office fee, and a power of attorney to E. The application was not filed by E. till February, 1858. The patent was issued in March, 1858. Held, that there was no abandonment of the invention to the public, and no consent to its use by the public for more than two years before February, 1858; and that there was, in judgment of law, a continuous application.</p> <p>[Cited in Lindsay v. Stein, 10 Fed. 913.]</p> <p>4. A rejected application for a patent is, of itself, no evidence of the existence of a perfected invention at the date it was filed, in the absence of any other evidence of the construction and operation at that- date of a machine embodying the invention described in such application.</p> <p>5. The second claim of said reissue, namely, “In a combined scourer and grain separator, the arrangement of two wind trunks side by side, in the manner shown and described, and for the purpose herein set forth,” is valid, although each of its two separators is, in and by itself, like a separator in a prior machine.</p> <p>[For another case involving this patent, see-Howes v. McNeal, 4 Fed. 151.]</p>

This was a bill in equity, filed to restrain the defendant from infringing letters patent [No. 11,125] for “extra yards for topsails,” granted to complainant June 20, 1854. The ■claim of the patent was as follows: “The application of an extra yard, supported by truss, crane, or brace, as herein described, or any other substantially the same, and that will produce the same effect” [The suit was brought by Frederick Howes against James Nute.]

<p>Case No. 6,791.</p> <p>Involuntary Bankruptcy — Petition against Married Woman — Separate Estate.</p> <p>A petition in involuntary bankruptcy was filed against alleged bankrupt, a married woman, having separate estate, grounded on the nonpayment of certain promissory notes of her hand. B.M, that inasmuch as it did not appear on the face of the notes that it was her intention to bind her separate estate, and there being no allegation that it was given for the benefit of the separate estate, or in course of trade, petition must be dismissed, with permission to amend on payment of costs.</p>

[This was a bill in equity by Eugene How-land against Lucius Blake and others, involving the title of plaintiff to certain mortgaged real estate.]

This was a libel in personam, by Daniel Howland, one of the crew of the ship Elisha Denniston, against Andrew Conway, master of the vessel, to recover extra wages, by way of damages for being put on short allowance. There were two other suits against the same respondent, brought by B. M. Travers and Henry Ware respectively, also members of the same crew. All three suits arose out of the same facts, and the other two were, by stipulation, made to abide the event of this.

<p>Trespass de bonis asportatis [by Gardner G. Howland and others, against Samuel D. Harris]. The case came before the court, upon a statement of facts agreed by the parties.</p>

[This was a libel in rem by Gideon How-land and Gilbert Howland against the bark Henry Hood (William M. Cameron, claimant) for failure to deliver a cargo of brick under the terms and conditions of a bill of lading.]

Mrs. Monefeldt died in 1857, leaving a will in which she appointed a Mr. Jervey her executor, and made certain specific legacies.

John Howland was forcibly taken out of the vessel, and carried off by the capturing privateer. The brig was retaken, paid salvage, and returned to Philadelphia, having earned her freight. Wages were claimed for voyage, deducting a proportion of salvage.

This was an action upon a policy for $10,-000 on the ship New Jersey, valued at the sum insured, on a voyage to and from Liverpool to Alexandria, by which policy “Thomas H. Howland, on account of himself and John Jackson,” caused insurance to be made, &c., and the declaration, which was in the name of T. H. H. alone, averred that the plaintiff and the said John Jackson were interested in the ship to the amount insured, and that in the prosecution of her voyage she was…

<p>Case No. 6,799.</p> <p>Customs Duties — Entry —Penalty por Undervaluation-Appraisal.</p> <p>1. Where an invoice of goods not purchased-in a foreign market, but belonging to their producer, was entered at the custom-house by their consignee, and, before any action was taken to determine the value of the goods, a corrected invoice was given to the collector by the consignee: Held, that it was the duty of the collector to take the valuation in the corrected invoice as the entry valuation, and that it was illegal for him to impose a penalty, as for undervaluation, because of the difference between the two invoices.</p> <p>[Cited in Carnes v. Maxwell, Case No. 2,417; Schneider v. Barney, 6 Fed. 151.]</p> <p>2. Where, under such circumstances, the appraisers, without any valuation of the goods, added to the first invoice prices, exactly the difference between the two invoices, and a penalty of 20- per cent., for undervaluation, was imposed, because such difference exceeded 10 per cent: Held, that under sections 16 and 17 of the act of August 30, 1842 (5 Stat. 563, 564), an actual appraisal of purchased goods, as of the time of purchase, must be made, to authorize the imposition of a penalty of 20 per cent, for undervaluation.</p>

<p>[Certiorari to the Fourth district court of the state of California.</p> <p>[This was" a bill in equity by William H. Howland, Horace B. Angelí, Irwin T. King, and Cyrus Palmer against Frank Soule, as collector of internal revenue, to enjoin him from the collection of certain taxes.]</p>

In admiralty. This. was a libel for salvage. It appeared that the ship London Packet sailed from New Bedford on the 24th of November, 1841, fitted for a voyage of three and a half years in the sperm whale fishery.

This was a bill in equity, framed with a double aspect. It stated a partnership between Joseph Hoxie, the plaintiff, and Simon Reynolds, one of the defendants, in the manufacture of cotton cloths, under the firm of the West Greenwich Manufacturing Company; and the possession and purchase of certain real estate, including the factory, and other appendages, out of the joint funds of the partnership, which were occupied, used, and improved, for the benefit of the partnership; a…

<p>Case No. 6,803.</p> <p>Federal and State Courts — Conflicts of Jurisdiction — Habeas Corpus — Interstate Extradition.</p> <p>[1. A federal court will not presume, before the event, that a state court will disobey the act of congress relating to the rendition of fugitives from justice from other states (14 Stat. 385), when it shall be made to appear to such state court that the alleged fugitive is held under authority of the federal statute.]</p> <p>[2. A person charged with crime in another state and arrested in California by the state authorities, under the provisions of the Penal Code, to await the requisition of the governor of such other state and the issuance of a warrant of extradition by the governor of California, pursuant to the act of congress, cannot be said to.be held under the authority of the United States, so as to authorize the issuance by a federal court of a writ of habeas corpus to inquire into the legality of his detention.]</p>

Appeal [by Samuel Hoyt] from the decision of the commissioner of patents refusing to grant him letters patent for his improvement in constructing millstones.

This was a petition filed by mechanics to obtain priority of payment out of the funds in court as against the mortgagee of the same premises. About the middle of April, 1871. the bankrupts commenced the building of a hotel at Chippewa Palls, and on the 10th day of July, 1871, they gave a mortgage to Romeo H. Hoyt for $15,000, upon the premises covered by the hotel building then in process of erection, which mortgage was recorded on the day following.

<p>Case No. 6,806.</p> <p>Bankruptcy — Payment op Surplus to Bankrupt —No Debts Proved — Procedure.</p> <p>The surplus funds in the hands of the as-signee, after the settlement of the estate, where no debts have been proved, and there is reasonable cause to believe that none will be proved, are to be paid to the bankrupt upon the filing of a petition oh oath by him, setting forth his reasons for believing that no creditors desire to prove their debts, and asking that the '■'¡lids shall be paid to him.</p> <p>[Cited in Re Smith, Case No. 12,989; Nicholas v. Murray, Id. 10.223.]</p> <p>[Cited in Perry v. Lorillard Fire Ins. Co.,</p> <p>' 01 N. Y. 216; Page v. Waring. 76 N. Y. 473; King v. Remington, 36 Minn. 31, 29 N. W. 352.]</p>

<p>Case No. 6,807.</p> <p>Bond fob Costs — What is Sufficient.</p> <p>1. A bond conditioned for the payment of “all costs that may accrue in a suit, and be adjudged against the plaintiff,” is a sufficient compliance with the rule requiring an indorser “for all costs for .which the plaintiff may be liable in the suit.”</p> <p>2. Each party is supposed to pay his own costs as they arise in the course of proceedings; and the court will compel the performance of this duty by attachment if necessary.</p> <p>[This was an action at law by William S. Hoyt, William Wade, Alfred H. P. Edwards, and Benjamin Hoyt against Richard C. Byrd, Sterling H. Tucker, and James Scull, Jr.]</p>

<p>Case No. 6,808.</p> <p>Customs Duties — Compensation of Collector— Resignation — commissions.</p> <p>[1. Act March 2, 1799. § 2 (1 Stat. 706), provided that the compensation of collectors of customs at ports of entry should consist of certain commissions on all moneys received by them. Act May 7, 1822, § 9 (3 Stat. 695), provided that whenever the “emoluments” of the collector of a named port should exceed a certain sum the excess should be paid into the treasury. Held, that “emoluments” herein cover commissions on the collection of duties bonded by the collector; and he can therefore make title to, or claim interest in, commissions on duty bonds only so far as to mingle them with all his other emoluments in order to secure the maximum granted him by law.]</p> <p>[2. Act Cong. May 8, 1792, § 4 (1 Stat. 274), relative to the compensation of customs officers, provides that, “whenever a collector shall die, the commissions to which he would have been entitled, on receipt of all duties bonded by him, shall be equally divided between his legal representatives and his successor in office, whose duty it shall be to collect the same.” Act March 2, 1799 (1 Stat. 709), extends this provision in favor of a collector who resigns. Held, that the commissions so granted to a collector who has resigned is compensation for his acts in and about taking the bonds, and cannot be deemed compensation for his turning over his books and papers to his successor, and for his labor in making up his accounts after his resignation, both of which he is required to do by law as an essentia] part of his official duty.)</p> <p>[3. It follows, therefore, that where a collector who has resigned sues his successor to recover the half of commissions on' duties bonded by him before his resignation, the burden is upon him to show that the emoluments received by him while in office did not reach the maximum fixed by law as his compensation, failing which he is not entitled to recover.)</p>

<p>Case No. 6,810.</p> <p>Partnership — Settlement of Estate,</p> <p>An administrator of a deceased partner has power to settle with the surviving partners on such terms as in the exercise of good faith and reasonable diligence he may choose to accept. He is the personal representative of the deceased partner, and has all his powers of settlement, except that being trustee for the next of kin, he cannot give away anything.</p> <p>[Cited in Nellis v. Pennock Manuf’g Co., 38 Fed. 380.]</p> <p>[NOTE. An appeal was then taken by the complainants to the supreme court, where the decree was affirmed in an opinion by Mr. Justice Bradley, who- held that the complainants’ acquiescence precluded them from the relief sought. As the administratrix and guardian had allowed the assets of the deceased partner to remain in the firm, her lien on the property thereafter acquired was postponed to that of creditors, when a ease arose for an equitable marshaling of assets. The beneficiaries of the deceased partner’s estate had no greater claim than she had. 103 U. S. 613.]</p>

Exceptions to libel. The libel in this case was filed by George W. Allen and Wells Burt, against the bark H. P. Baldwin, to recover damages for a collision. The claimants filed exceptions to the libel, for insufficiency in the statement ■of the cause of the collision.

Libel and cross-libel for collision between the schooner Marquette ‘and the- bark H. P. Baldwin. The collision, occurred between two and three o’clock in the morning of the 10th day of July, 1870, in the -Straits of ' Mackinaw, south of the center of the - channel, and off from and a-little west of “Old Fort Mackinaw,” so called.

<p>In bankruptcy. [In the matter of Edward Hubbard, Jr.] In this case certain creditors proved their debts at the first meeting, on the twenty-fifth of November, and on the-twenty-first of December they filed a petition before the register to be allowed to withdraw their proofs of debt from the files, for the reason- that, since proof had been made, they had discovered that a certain person named was a dormant partner , with the bankrupt, and was solvent; that they could not by due diligence have discovered this fact earlier; and alleging that they had. discontinued all suits against the bankrupt himself. The register certified to the judge the question whether the petition ought to be granted.</p>

<p>This was a bill in equity, praying that a judgment rendered in favor of the defendants against the bankrupts [Robert J. Hubbard and Andrew J. Hennion], and all proceedings thereunder, including .an execution issued thereon, and a sale of property of the bankrupts on such execution, might be decreed to be null and void, and that the defendants might be required to account for and pay over to the plaintiffs, as assignees of the bankrupts, such sums of money as they had received by virtue of the judgment and the proceedings thereunder. The defendants had a claim against the bankrupts amounting to four thousand six hundred and fifty-four dollars and forty-four cents, with interest from October 18th, 1867. On the 28th of October, 1867, the defendants commenced an action against the bankrupts in the superior court of the city of New York, to recover the said claim. The bankrupts, in pursuance of an agreement to that effect made by them with the defendants, appeared in the suit by attorney, and, without availing themselves of the twenty days delay allowed by law, consented in writing to the entry of a judgment in the suit in favor of the defendants, by serving on the defendants, on the 31st of October, 1867, an offer in writing to allow judgment to be taken for said sum. On the 1st of November, 1867, the offer was accepted by the defendants, and, on the 2d of November, 1867, a judgment was entered and docketed in said court, in favor of the defendants against the bankrupts, for four thousand six hundred and eighty-six dollars and sixty cents, being the amount of said claim and interest and costs of suit. On the same day an execution was issued on the judgment to the sheriff of the city and county of New' York. Under that execution and other executions, the sheriff seized certain personal property of the bankrupts, and, on the 14th of March, 1868, sold it and realized for it a sum, out of which the amount of the judgment, with interest from Nov. 2d, 1867, namely, four thousand eight hundred and six dollars and. ninety-four cents, waá paid to the defendants. The claim on which the judgment was recovered, was one which existed on the 18th of October, 1867. On the allegations in the bill, the bankrupts, at the time of the confession of judgment and of the entry +''ere-of, were insolvent, and ■ the officers o. the defendants, they being a corporation, had reasonable cause to believe that the bankrupts were so insolvent, and that the transaction was one in fraud of the provisions of the bankruptcy act. On the 27th of March, 1868, a petition in involuntary bankruptcy was filed, in the district court of the United States for this district, against the bankrupts. On the 17th of April, 186S, they were adjudged bankrupts, and the plaintiffs were afterwards duly chosen to be their assignees. The ease now came before the court on a plea put in by the defendants to the bill. The plea did not aver when the property of the bankrupts was seized on the execution, nor did the bill aver when it' was so seized. But the plea averred that the execution was levied on the property more than four months before the filing of the petition in bankruptcy. The plea pleaded in bar of the bill the fact that the judgment was entered and execution thereon was issued, and the levy thereunder complained of in the bill was made more than four months before the filing of said petition, and that no part of the property of the bankrupts mentioned in the bill was attached, sequestered, or seized on execution under or by virtue of the judgment, within four months before the filing of the said petition. The plaintiffs did not take issue on the plea, but demurred to it, and the question whether the plea should be held good and allowed, was argued.</p>

[This was a bill in equity by Amos H. Hubbard against the Bank of the United States and others, to compel a transfer of bank stocks on the bank’s books.] The points presented by the pleadings and proofs are, in substance, that James Lanman, of Norwich, Connecticut, had invested funds belonging to the separate estate of his wife in the stock of the Bank of the United States, intended to be reserved for her separate- use, but, for convenience of transfer and drawing dividends,…

Assumpsit on a special policy of insurance. The policy, reciting that the plaintiffs were jointly interested in the cargo of the ship Monticello, .and the defendants in the cargo of the brig Reaper, on a voyage from Calcutta to the United States, and that the parties were of opinion, that the premium required by underwriters was greater that the risk, for the purpose of dividing the risk, stated the agreement as follows: That the plaintiffs should pay to the defendants…

[At law. Assumpsit by Elijah T. Hubbard and Henry T. Carrington against Edward M. Morgan, William H. Jessup, Henry T. Morgan, and Knowles Taylor to recover a balance of account of $10,179.75. Heard on motion for a new trial on case.

These were actions at law, originally instituted in a state court, and were removed into this court by the defendants [the Northern Railroad Company and trustees], under the 12th section of the act of September 24, 1789 (1 Stat. 79). The plaintiffs [Henry Hubbard and Solomon Downer, administrators of S.F. Belknap] now moved to dismiss the actions, and remand them to the state court, for want of jurisdiction in this court.

<p>Case No. 6,819.</p> <p>Equity — Practice—Answer —Crosse ill — Fraud —Assignment of Mortgage — Rights of Assignor and Assignee — Notice—Setoff.</p> <p>1. Fraud must be clearly proved.</p> <p>2. A mortgage assigned in payment of a debt is not held by the assignee subject to the claims of the creditors of the assignor.</p> <p>3. Although there may be an equitable lien on the mortgaged premises, yet the assignee having no notice of it is not affected by it.</p> <p>4. Generally the mortgagor may claim the same rights against the assignee of a mortgage as against the mortgagee.</p> <p>5. If the mortgagor have a setoff or mutual credit against the mortgagee it is not affected by the assignment.</p> <p>6. A payment made to the mortgagee, after the assignment but before the mortgagor has notice of it, is good against the assignee.</p> <p>7. The statute of Illinois, however, places bonds and mortgages and every- description of instrument, for the payment of money, or property on the same footing as bills of exchange.</p> <p>8. Under the statute of Illinois a declaration of trust not recorded is inoperative.</p> <p>[Cited in Oregon Trust Co. v. Shaw, Case No.</p> <p>10,556.)</p> <p>9. A mortgage on a large amount of property, for the payment of ninety thousand dollars, where but four thousand dollars were due to the mortgagees, is fraudulent, as against creditors. And these facts are sufficient for the exercise of an equitable jurisdiction.</p> <p>10. It is not the English practice to set up a matter in the answer, which shall have the effect of a crossbill. And our practice is derived from that of the high court of chancery in England.</p>

<p>[In bankruptcy. In the matter of C. C. Hubbel and E. A. Chapel.] •</p>

<p>Case No. 6,821.</p> <p>Fire Insurance — Rights under Policy — Fraud of Insured — Burden of Proof — Interest on Policy.</p> <p>1. The sixty days for an insurance policy, before right of action accrues, begin to run from the time of furnishing the proof, not from the time of furnishing additional proof required by the company.</p> <p>2. If the insured, with intent to defraud, makes claim for a larger loss than he actually sustained, he forfeits his rights.</p> <p>[Cited in Shaw v. Scottish Com. Ins. Co., 1 Fed. 765.]</p> <p>3. Burden of proof, in establishing this defense, is on the defendant, and the evidence must be either direct and positive, or the circumstances must be convincing, and admitting no other natural conclusion.</p> <p>4. On verdict for insured, the jury should allow interest from the commencement of the action.</p> <p>Consult Huchberger v. Merchants’ Fire Ins. Co. [Case No. 6,822], and notes thereto.</p>

This was a suit to recover on one of several policies of insurance to the amount of four thousand six hundred dollars on a stock of goods owned by the plaintiffs [Lehman Huch-berger and others] in the store No. 173 Lake street, Chicago, which was destroyed by fire on the 2d of March, 1867. No question was made that the fire occurred, and that the plaintiffs complied with the stipulations of the policy, and furnished in proper season proof of loss.

<p>{This was an action at law by Huch-berger Bros, against the Providence Washington Insurance Company.]</p>

In admiralty. Libel in rem by the United States against schooner Hud and Frank, claiming her forfeiture for being fraudulently enrolled. The owners made claim, and answered, that the schooner, under the law, was substantially a new vessel; and that if she could not be so treated, then she was entitled to be enrolled as a foreign vessel, wrecked in the United States, and purchased and repaired by a citizen, and for that reason not liable to forfeiture.

[Error to the district court of the United .States for the Eastern district of Pennsylvania.] McKENNAN, Circuit Judge. Held: and by his delivering to R. D. Wood & Co., inter alia, the two notes forming the present claim.

Petition by the plaintiff to remand a suit of covenant brought in common pleas court No. 2 to the June term, 1S75. The cause was at issue in June, 1876, but was not ordered upon the trial list until some time in December, 1876, when it was ordered upon that list by the defendant. The cause appeared on the trial list of common pleas court No. 2, published in February, 1877.

<p>Case No. 6,827,</p> <p>Discharge in Bankruptcy—Partners—Dissolution or Firm—Assignee.</p> <p>1. The discharge of a member of a firm, upon his individual petition in bankruptcy, and without any proceedings by or against the firm, does not discharge such member from the firm or partnership debts.</p> <p>[Cited in Re Jewett, Case No. 7.306; Re Webb. Id. 17.317: Re Brick, 4 Fed. 806; Re Johnston, 17 Fed. 72.]</p> <p>[Cited in Corey v. Perry, 67 Me. 144; Poillon v. Lawrence, 77 N. x. 218.]</p> <p>2. The dissolution of a firm by agreement between the members thereof will not affect the rights of its creditors, though the terms of such dissolution will frequently be enforced by the courts, as between the parties to such agreement.</p> <p>[Cited in Wilkins v. Davis, Case No. 17,664; Crompton v. Conkling, Id. 3,407.]</p> <p>3. An assignee appointed upon the adjudication of an individual member of a firm upon his own petition alone, whether the firm be existing or dissolved, acquires no title to the property of the firm.</p> <p>4. In re Little [Case No. 8,390], and In re Noonan [Id. 10,292], cited and approved. The Cases of Frear [Id. 5.074], and Grady [Id. 5,-654], examined and commented on.</p>

<p>Case No. 6,829.</p> <p>’Collision on Hudson Rivek — Vessel at Anchoe in Fog — Fekky Track.</p> <p>1. A United States revenue steamer came to ■anchor so near the track of a ferry, that, when the tide was ebb, if the ferry-boats kept far enough down to avoid her. they risked falling below the ferry slip. The steamer was requested to move further up stream, but failed to do so. The next morning was foggy, and, shortly before daylight, ferry-boat, although carefully navigated, collided with the steamer, which had failed to ring a bell, or otherwise announce her position: Held, that the steamer was improperly anchored too near the ferry track.</p> <p>2. The ferry-boats were not bound to cease their trips in the fog.</p> <p>3. The steamer was also in fault in failing to give some audible signal of her position.</p>

The libellant brought this suit for the recovery of wages as steward on the steamboat Hudson. He avers that he entered on board in that capacity on the 17th of February, 1S46; that no contract was made as to the rate of wages, but that his services were worth forty dollars per month, and that the usage in that line of business is to pay stewards at such monthly rate for the entire season of ten months.

<p>Case No. 6,832.</p> <p>Attachment — Priority of Liens — Assignee in Bankruptcy.</p> <p>1. When, in an attachment proceeding, a judgment is recovered, and process issues thereon to sell the attached property, its lien relates back to the service of the attachment, and there is then no attachment process in existence upon which section 5044 can operate.</p> <p>[Cited in Shelley v. Elliston, Case No. 12,-750.]</p> <p>[See In re Badenheim, Case No. 71G.]</p> <p>2. An attachment issued in an action commenced by one A. was levied upon certain lands of the debtor. Subsequently an execution issued upon a judgment recovered by one B. was levied upon lie same lands. A. afterwards obtained judgment, and an order was issued thereon .to sell the lands attached. The debtor having filed a petition in bankruptcy, the sale was enjoined. The assignee in bankruptcy after-wards sold the lands, and the proceeds proved insufficient to pay both judgments. Hela, that the process issued on A.’s judgment was not affected by section 5044; that the assignee, in fact, took nothing, and that A. was entitled to priority.</p>

[Appeal from the district court of the United States for the district of Massachusetts.] The libellant [Joseph Hudson], a sail maker, furnished… Held: both in Massachusetts and Maine, that the note is not a payment and that the presumption Is repelled, where there are co-promissors or security to the original claim, because it would be absurd to presume that a person would release them, especially so, in a case like this, where a mechanic is presumed to rely upon the usual…

This was a bill in equity, filed to restrain the defendants [Francis Draper and others) from infringing letters patent [No. 35.299] for “improvement in the construction and manufacture of printing type,” granted to complainant [Thomas S. Hudson] June 5, I860. The invention consisted in striking up letters for printing from sheet metal, and grinding or planing off the surface until the roundness is removed and definite square sides and angles are obtained.

On motion for an injunction. Complain-iint [Joseph. L. Hudson], who was the as-signee in bankruptcy of Schott & Feibish, filed his bill ¿to restrain the defendant [Samuel] Schwab from the further prosecution ■of an action of trover against the marshal of this district for taking possession, under a warrant in bankruptcy, of certain goods claimed to belong to him.

The proceedings against the steamer were for stores and supplies furnished to her at Hoboken, and the libel filed assumed that her home was the port of New York.

Upon the petition of George O. Robinson for an order to realize balance for rent out of the proceeds of certain notes and accounts in his hands, and also for the payment of the rent of certain stores, while the same were in possession of the bankrupt ■ court. The facts are substantially as follows: First.

This was an action [by Jacob Hugg and John M. Bandel] upon a policy of insurance on the freight of the bark Margaret Hugg, at and from Baltimore to Rio Janeiro, and back to Havana or Matanzas, or a port in the United States, &c., to the amount of 85000, upon all kinds of lawful goods, &c.; beginning the adventure upon the said freight, from and immediately following the lading thereof aforesaid, at Baltimore, and continuing the same until the said goods, wares and…

<p>Case No. 6,839.</p> <p>Patents — Infringement—What Constitutes an Improvement — Specification.</p> <p>1. What constitutes an improvement, such as will sustain a patent for an improved machine, or for improvement in a machine: Those phrases have the same legal import.</p> <p>2. To sustain a patent for an improvement, it must effect the same object in a better, cheaper, more expeditious,'or more beneficial manner than the instrument improved, or it must effect some further or other beneficial object in connection with the former.</p> <p>3. Where a patentee, in his specification, claims an improvement, and describes the entire machine, he is not to be understood to claim as new that which was well known to be already in use.</p> <p>4. Where an inventor claims in his specification, of an improvement, to produce a particular result, as the object of his invention, by the means that he sets forth in his specification, a patent thereon granted is not construed to protect each several particular entering into the improvement, distributively considered: but only the combination of the whole, as one invention.</p> <p>5. In such case, the use of one of the parts or devices entering into the combination claimed to be invented, without the others, is no violation of the patent.</p> <p>C. It is immaterial what the claim of an inventor in his summary is if the foundation for such claim is not made in the descriptive part of the specification.</p>

The defendants, procured judgments in the state courts against the State Bank of South Carolina, and were proceeding to enforce them by execution and levy — whereupon the State Bank filed its bill in this court, stating that it was insolvent; that the defendants were about to procure an inequitable preference over its other creditors; by means of the executions which they were enforcing; praying for an injunction to prohibit them from so doing; and asking that Messrs.

[In bankruptcy. In the matter of William H. Hughes.] 2 H, Isaiah T. Williams, one of, the registers of said court in bankruptcy, do hereby certify that in the course of the proceedings'in said cause before me, the following question arose, pertinent to said proceedings, and was stated and agreed to by the counsel for the opposing parties, to wit: Francis C. Nye, who appeared for' the bankrupt, and Mr. A. M. Bigelow, who appeared as assignee of the said bankrupt The petition…

<p>[In bankruptcy. In the matter of Robert Hughes and others.)</p>

<p>Case No. 6,840.</p> <p>Execution against Bankrupt — Validity op -Levy — Priority op Liens.</p> <p>1. H. & Co. recovered judgment against the bankrupts, issued execution, and a levy was thereupon made upon the stock of goods in the store of bankrupts. The sheriff was instructed not to close the store, but to put a custodian in charge. A few days afterwards a United States marshal took possession of the store during the temporary absence of the custodian. Held, that the levy was a good one; that the claimants had done everything they were bound to do, and were entitled to be paid the amount of their claim out of the proceeds of the sale of the goods.</p> <p>2. An execution placed in the hands of a constable is not binding until after a levy is made, and when the sheriff has made a prior levy, although the execution to the constable was first issued, the sheriff’s execution must first be satisfied; if the levy is made before proceedings in bankruptcy are commenced, the constable’s execution is to be satisfied before the assignee is entitled to take the proceeds arising from a sale of the bankrupt’s goods.</p>

[This was a suit by Samuel Hughes against George Blake.] The object of the bill was to recover from the defendant a sum of money arising from the sale of a tract of land, commonly called “Yazoo Lands. alleged to have been effected by the defendant, in tbe year 1795. as agent of certain persons named in the bill, in which lands the plaintiff claimed to have had an equitable interest, in common with the defendant’s immediate principals, and. therefore, as being entitled to a…

This .was an.action on the case [against the mayor and city council] to recover damages sustained by the plaintiff [James HughesJ, by falling into Harford run, where it crossed Canal street, in the city of Baltimore.

<p>Case No. 6,846.</p> <p>Customs Duties — Classification—Shawi-s.</p> <p>[Shawls are liable to a duty of 50 per cent, ad valorem if any part is woolen and not worsted, under Act 1832, § 2, art. 2 (4 Stat. 584), imposing such duty upon “merino shawls made of wool, all other manufactures of wool, or of which wool is a component part,” and are not duty free, under Act 1833 (4 Stat. 630), as. “worsted stuff goods, shawls, and other manufactures of silk and worsted,” unless they were known in the market antecedent to the act of 1832 as worsted or worsted and silk goods. Elliott v. Swartwout, 10 Pet. (35 U. S.) 137. followed.]</p>

Ths is an action [by F. W. Huidekoper against Buchanan county] upon coupons to bonds issued by the county court of the county of Buchanan in payment for stock subscribed to the St. Louis & St. Joseph Railroad Company.

April Term, 1804. . This ejectment was brought [by the lessee of Huidekoper] to recover four hundred acres of land, situated on Lake Erie; in the triangle conveyed by the United States to the state of Pennsylvania, in March, 1792.

admitted; that, in the declaration against the casual ejector, there exists the mistake alleged; but, a new declaration was filed in the present circuit court, and properly entitled: to which declaration the defendant pleaded, that the land, in this declaration, is stated to lie in the district of Pennsylvania; which, after the repeal of the former circuit court law, was sufficient. Rule discharged.

This is an action on coupons of bonds issued: by Dallas county, to the Laclede and Fort Scott Railroad Company or bearer. The petition refers to the act under which the bonds were issued, alleges that for the subscription made the county obtained stock certificates which it still holds; that the county has exercised the rights of a stockholder; that it paid the three first installments of interest, but has failed to pay the coupons in suit on presentation.

This cause resembled the two former cases of the same plaintiff,, against Burrus and Mc-Clean [Cases Nos. 6,848, 6,852], and was .tried at the last term.

This case did not differ materially from that of Huidekoper v. Burrus [Case No. 6,-848].

Action on the ease by plaintiff [Edwin M. Hukill], holder of certain bonds of the Riverside Improvement Company, secured by deed of trust to the defendants [Benjamin V. Page and others], the declaration alleging that the plaintiff purchased the bonds relying upon the security of the trust deed, but that the defendants wrongfully executed and delivered to the said company a release of said trust deed, which was duly ■filed for record, whereby plaintiff’s bonds became of…

<p>Case No. 6,855.</p> <p>.Payment or Note Held, by Bank fok Collect tíos — What Constitutes.</p> <p>Where one of three makers of a promissory note, payable at the office of a banking association, thirteen days before the note became due, deposited with the company at their office .a sum of money sufficient to meet the note, and ■ received from the cashier a certificate of credit for that sum. “to pay your note to” the payees named in the note, and the bank failed on the day the note fell due, having, from the time of the deposit up to the day of failure, constantly more than sufficient funds on hand to pay the note: and after the deposit of the money, and before the note became due, it was deposited with the company, who held it up to the ■day of failure, with authority to receive payment upon it. but no further application of the money deposited had been made to its payment, Jield, that the note remained unpaid, and that the makers were liable upon it to the payees.</p>

This was an application by John W. Hull and Abraham H. Smith to show cause against being declared bankrupts. It appeared by the petition of the creditors: That previous to December last, Hull and Smith were merchants and partners in trade in the city of New York.

<p>[In bankruptcy. In the matter of Arthur A. Hull.]</p>

<p>Case No. 6,859.</p> <p>Admiralty Jurisdiction — Mechanic's Lien — Parties to Suit — Hypothecation op after-Acquired Property — Priority of Liens — Sub-rogation— Assignment of Claim — Splitting of Claim.</p> <p>1. When .the local law gives a lien to material-men and mechanics, for their demands against a ship, it may be enforced in the admiralty.</p> <p>[Cited in The Richard Busteed, Case No. 11,-764; The Kate Tremaine, Id. 7,622.]</p> <p>2. All the privileged creditors may unite in •one libel, or if a libel has been filed by any one separately, then others may come in by petition and make themselves parties to the suit.</p> <p>[Cited in The Prinz Georg, 19 Fed. '654.]</p> <p>3. A valid contract of hypothecation may be made not only of things which the party has at the time of the contract, but of what he expects to have, and of things not then in existence. . It will attach to, and find, the party’s interest in tlie thing as soon as it comes into being.</p> <p>4. A ship-builder, before he commenced building a vessel, entered into a contract with a merchant by which he hypothecated the vessel to be built for advances. This was held to be a valid hypothecation of the builder’s interest in the vessel, and to give a lien upon it.</p> <p>5. By a statute of Maine, material-men and mechanics have a lien on vessels for materials and labor employed in making it, which has precedence over the claims of all other creditors. The lien created by the contract of hypothecation was postponed to those of the material-men and laborers.</p> <p>[Cited in The Hiawatha, Case No. 6,453.)</p> <p>6. Nor was the hypothecary creditor subrogat-ed to their privilege, merely by paying their claims on orders drawn by the builder.</p> <p>7. But when he actually furnished materials, he was allowed to claim concurrently with them.</p> <p>8. When a creditor transfers his debt, the assignment of the debt carries with it all the accessory obligations, as pawns, hypothecations, or sureties, by which the debt is secured.</p> <p>[Cited in The Sarah J. Weed, Case No. 12,-350; Hooper v. Rohinson, 98 U. S. 538. Approved in The New Idea, 60 Fed. 294.]</p> <p>9. But where a creditor has a debt due him on a single contract or obligation, he cannot divide it by assigning part to one and part to another so as to enable each assignee to maintain a separate action without the assent of the debtor.</p> <p>[NOTE. For similar libels filed under Rev. St. Ale. c. 125, § 35, see Purinton v. Hull of a New Ship, Case No. 11.413; Sewall v. Same, Id. 12,682. See, also, The Calisto, Id. 2,316; Read v. Hull of a New Brig, Id. 11,609.]</p>

This was an action on the case under a statute of Rhode Island, to recover damages for an injury received by the plaintiff [La-tham Hull] on what was alleged to be a highway in said town, on the 15th of October, 1S45. The declaration averred, that the highway was not in good repair through the neglect of the town, and claimed damages for the injury thus caused to him to the amount of six thousand dollars. The treasurer pleaded for the town not guilty.

<p>Case No. 6,860.</p> <p>Infringement of Patient — Damages.</p>

This was an action for an assault and battery committed on the high seas, and the damages were laid in the declaration at 1000 dollars; but the controversy being referred, the referees reported only 45 dollars in favor of the plaintiff.

The register certified the facts, in this case for the decision of the court, as follows: Daniel Adee was appointed receiver by the New York supreme court, upon supplemental proceedings instituted by a judgment creditor of [William W.] Hulst, the bankrupt. During the proceedings in bankruptcy, in this case, before the register, Adee was summoned as a witness, and required to produce the books and accounts of Hulst, under his control as receiver.

<p>Case No. 6,863.</p> <p>Assignee and Receiver — Sale op Property.</p> <p>1. Property was forcibly taken by the marshal, under a warrant issued in bankruptcy proceedings. from the possession of a receiver appointed by a state court, in proceedings supplementary to execution against the bankrupt, and was by the marshal handed over to the assignee, when appointed. The assignee applied for an order to sell the property: Held, that the court would not summarily order a sale of property so taken, against the protest of the receiver.</p> <p>2. The title of the assignee to the property must be enforced by a plenary suit.</p>

George Hume, administrator of the estate of Mary B. Hume, deceased, a citizen of Indiana, sues the Pittsburgh, Cincinnati and St Louis Railroad Company, a corporation organized under the laws of Ohio and operating a line of railway between the city of Columbus, Ohio, and the city of Indianapolis. Indiana, for damages resulting from negligently running its cars over and killing the said Mary E. Hume, his wife.

The bankrupt, in 1857, owning real estate, then subject to encumbrance for part of the purchase money, commenced the erection of several houses upon the property, and further encumbered parts of the property by deeds of trust, and becoming embarrassed and unable to complete his undertakings the property was further encumbered with mechanic’s liens.

<p>William S. Humphrey was brought before this court upon a writ of attachment issued against him, for his refusal to obey a subpoena from this court, requiring him to appear and testify before a United States commissioner in the city of New-York, under the 30th section of the judiciary act of 1789 (1 Stat. 88), as a witness de bene esse in a suit pending in the circuit court for the district of Massachusetts. The witness had been duly subpoenaed and had failed to attend. But it also appeared, by his own affidavit, that he resided in Massachusetts, about fifty miles from Boston, and was temporarily in New-York on business, and purposed • returning to his family and place of residence within a few days.</p> <p>Seth P. Staples objected, that the witness could not be compelled to appear before the commissioner to give his deposition; but that the proper course was to take his testimony on commission.</p>

This was a petition of a party imprisoned on process issued from this court, praying for the benefit of the act of 6th January, 1800 (1 Story, Laws, 715 [2 Stat. 4]), and its various supplements. Held: in equity, to pass more than the value of the consideration on which it was made, the court proposed to the opposing creditor that he should take from the petitioner an assignment of any remaining interest he might have in the legacy, which the creditor refused to do.

<p>Case No. 6,869.</p> <p>Admiralty — Seamen’s Wages — Forfeiture.</p> <p>Forfeiture of half wages, in consequence of such improper behaviour, as made it necessary to dismiss the seaman when the voyage was about half performed.</p> <p>[Cited in The Mentor, Case No. 9,427.]</p>

After a commission of bankruptcy had been issued against Blight, the plaintiff took an assignment from Murgatroyd of two notes of hand due from the bankrupt He applied to Blight, informing him of the assignment, and desiring to know what dividend of his estate would be made; and was informed it would pay ten shillings in the pound, without mentioning any offsets existing against the notes.

This was a suit on a policy of insurance of $2000 on the schooner Zephyr and appurtenances, and $1500 on her cargo, at and from Messina to Boston, ■ with liberty to touch at Gibraltar. The .loss stated was a total loss by the perils of the seas.

<p>Case No. 6,872.</p> <p>CORPORATIONS — GENERAL POWERS — PRESUMPTION —Construction op Statutes — State Laws in Other States.</p> <p>1. It is a well-settled principle, that a corporation has only such powers as are specifically granted, and such as are necessary for carrying the former into effect; and that these powers can be exercised only for the purposes contemplated by its charter or act of incorporation. But it may borrow money or deal in credits, or become a party to negotiable paper, by purchase or otherwise, in the transaction of its legitimate business, if that is a convenient mode of conducting it, unless expressly prohibited. And the legal presumption, until the contrary is shown, is that its acts of that kind are done in the regular course of its authorized business.</p> <p>2. The statutes of one state or country, when they become the subject of adjudication in another state or country, are to receive the same construction that is given them in the courts of the former, where that construction is made to appear.</p>

<p>[This was an action by Walter H. Hum-phry against the Hartford Fire Insurance Company for damages for breach of contract. At trial, a verdict was rendered for the defendant, and the case is now heard on a motion for a new trial.]</p>

<p>Case No. 6,875.</p> <p>Insurance— Paroi. Contract — Evidence—Merger-Extent of Recovert — Breach of Conditions — Authority of Aoent.</p> <p>1. A contract of insurance can be made by parol, unless prohibited by statute or other positive regulation, and, on proof of such a contract, the insured can recover at law the same damages as if he were suing on a policy issued in the form in which it was agreed to be issued.</p> <p>[Cited in Bailey v. American Cent. Ins. Co., 13 Fed. 254.J</p> <p>2. In the present case, it was held that such a parol contract was proved.</p> <p>3. Such a parol contract cannot be held to have been merged in a policy issued, which did not conform to such contract.</p> <p>4. When a contract of insurance is made with a mortgagor for the insurance of his interest, the mortgagee can recover only where the mortgagor could have done so, had the money been payable to himself, instead of being payable, for his benefit, to the mortgagee, and cannot recover where the mortgagor has committed a breach of the conditions of the policy.</p> <p>5. But, where the contract is with A., to insure his interest, no alienation by another person of the property in respect of which the in-mu-ance is effected can affect or prejudice the rights of A.</p> <p>C. Where the agent of an insurance company knows, at the time insurance on a mill is effected, that it is not being operated as a mill, its continuance in that state is not a breach of a condition that the policy shall be void if the mill shall cease to be operated as a mill.</p> <p>7. An unrestricted authority to negotiate a contract of insurance, by issuing a policy, includes authority to make a valid preliminary contract for such issue.</p> <p>[Cited in Commercial Union Assur. Co. v. State, 113 Ind. 338, 15 N. E. 518.]</p>

Replevin. Avowry for rent-arrear. Plea, no rent-arrear. [R. R. BurrJ. contended that the burden of proof was on the plaintiff, to show that he had paid the rent; the plea admits every thing necessary, namely, the demise, the tenancy for the time, and the amount of rent accruing for the time. 4 Starkie, Ev. 1297; Alexander v. Harris, 4 Cranch [S U. S.] 304.

<p>[Suit by Samuel H. Hunneman and Joseph II. Hunneman against the city of Milwaukee.]</p>

This is a bill [by Horatio H. Hunnewell, suing for himself and others] to restrain the collection of taxes levied upon the lands granted by congress to the defendant railroad company.

The respondents in this case were agents of the ship Good Return, and shipped a large cargo of oil on board the Eliza Warwick, the libellants’ ship, at Honolulu, in the spring of 1853. This oil was mostly stowed aft of •the main hatch in the lower hold. Upon its delivery at New Bedford, it was found that there had been a loss by leakage, to the value of between three and four' thousand dollars.

<p>Case No. 6,881.</p> <p>Bankruptcy — Sale ik Contemplation' of—Evidence—Good Faith of Vendee—Procedure.</p> <p>1. Congress may,-within the limits of federal jurisdiction, modify or repeal the existing rules of evidence, and any such modification should not be left to inference, but should be the subject of clear and unambiguous enactment.</p> <p>2. A sale made by a person contemplating bankruptcy is not ipso facto void; but if made without the usual course of trade, or is unusual in the time, or price, or character, or quantity of the goods sold, such facts as against the vendee are held to be prima facie evidence of fraud in him.</p> <p>[Cited in Graham v. Stark, Case No. 6.676; Potter v. Coggesliall, Id. 11,322; Hall v. Hayner, Id. 5,933: Re Marter, Id. 9,143.)</p> <p>[Cited in Washburn v. Huntington, 78 Cal. 576, 21 Pac. 305.)</p> <p>3. Sales involving all the elements of fraud, so far as the vendor is concerned, may still stand, on account of the good faith of the ven-dee.</p> <p>4. In such case the proper and only remedy for the creditors is to oppose the bankrupt’s discharge, as provided in the twenty-ninth section of the bankrupt act [of 1867 (14 Stat. 531»</p> <p>5. Section six of said act contains the only provision for the determination of substantial rights by informal or summary proceedings; i. e., where the parties by consent submit to the jurisdiction, and present the issue informally to the court for its decision.</p> <p>6. In cases of fraud the court may assume the custody of personal property in the hands of the vendee of the bankrupt, purchased before the vendor is adjudged a bankrupt. Held, in this case, the vendees having purchased in good faith, without knowledge of the bad faith of the vendor, and being able to respond to an adverse final judgment upon the question of title, that the court would not settle the question upon motion.</p>

<p>[In bankrüptcy. In the matter of-M. Hunt and W. E. Hornell.]</p>

<p>Case No. 6,884.</p> <p>Bankruptcy — Proof of Debt — Ascertainment of Value of Mortgage Security.</p> <p>After the adjudication, a creditor, who held a mortgage for fifteen thousand dollars on the bankrupt’s real estate, had it sold at public auction and purchased it himself for one hundred and forty-two dollars and fifty cents. He then proved for the residue of the mortgage as an unsecured claim at the first meeting of creditors. The register- allowed the proof against objections and permitted him to vote for assignee, whereby a majority in value of the creditors was obtained: fleZd, that no such mode of ascertaining the value of mortgage security is recognized by the bankrupt act [of 18(37 (14 Stat. 517)]; that the register had no authority to admit the proof and allow the vote against objection; and that the choice of the assignee under such circumstances was irregular.</p>

<p>Case No. 6,883.</p> <p>Bankruptcy — Homestead.</p> <p>A bankrupt applied to the court in bankruptcy for an order to the assignee, requiring him to set apart certain real estate aB his homestead, and for an injunction restraining a creditor who had recovered a judgment and issued an execution thereon prior to the bankruptcy, from proceeding to sell the property. The application was denied for the reasons that if the property in question be a homestead, the title is unaffected by the bankrupt act [of 1867 (14 Stat. 517)]. If.it is not a homestead,-the creditor who has a lien to its full value is the only person interested to establish the fact. If it has been wrongfully seized in execution, the bankrupt has the same rights before the state tribunals as any other person whom it is sought to deprive of a lawful homestead.</p> <p>[Cited in Re Wyllie, Case No. 18,112; Re Everitt, Id. 4,579; Re McKenna, 9 Fed. 36.]</p>

[Appeal from the district court of the United States for the district of Illinois. [This was a libel by Edwin Hunt- against the propeller Cleveland for damages, alleged to have been caused by the negligence of the claimant, to certain goods belonging to the libellant]

This was a libel in personam, promoted by John Hunt, second mate of the bark Trinity, against the master and owners, claiming damages for the wrongful dismissal of the libellant, by the master, at Galveston, Texas. There was also a claim for the value of his clothes, which the libel-lant was compelled to leave on board of the Trinity, and for wages.

This was a bill in equity, which came on to be heard on a demurrer.

This case [by Mary Hunt against Walter R. Danforth, executor], which was previously before the court on a demurrer to the bill [Case No. 6,887], now came on to be heard on the pleadings and proofs. The bill and exhibits are printed in the former report of the case. The defenses set up by the answer were; 1.

This is a bill in equity [by Clement S. Hunt against William Ennis and others, administrators of Louis Rousmaniere) set down for a hearing upon demurrer.

This bill was filed by W. P. Hunt against [E. O.] Holmes & Blanchard, alleging tlíat he-holds their notes to the amount of eighteen thousand dollars and over; that Holmes & Blanchard brought an action against him in the supreme judicial court for Suffolk county for breach of contract; that he denied all liability, and defended the action; that, before the cause was tried, the defendants in this, suit, plaintiffs in the action, became bankrupt, and made a statute composition…

[This was an appeal by Walter Hunt from a decision against him by the commissioner of patents in an interference proceeding between said Hunt and Elias J. Howe, Jr., in respect to the invention of a sewing machine.]

[In equity. Bill by Samuel B. Hunt and wife against Elizabeth B. Innis and others.] Submitted for final decree upon the pleadings and evidence.

This was a demurrer to a bill in equity. The plaintiffs [Frederick Hunt and others] were aliens, and assignees in bankruptcy, under the laws of Great Britain, of one Golding, an insolvent merchant of London. The defendant [Abraham J. Jackson] was a citizen of the state of New York, residing in the city of New York.

On motions of defendant Oliver as follows: First, to vacate an order extending time to take testimony, and referring it to a commissioner to take proofs and to compute amount due upon the bond and mortgage, and to set aside the report of John J. Speed, commissioner, made in pursuance of said order. Second, to stay proceedings in the cause until final determination of the matters in controversy upon the cross-bill filed therein.

<p>Case No. 6,895.</p> <p>Practice — Granting New Trial.</p> <p>1,. A circuit court has power to set aside a verdict upon the ground that it is against the weight of evidence.</p> <p>2. The power to set aside a verdict as against the weight' of evidence should only be exercised where the court can clearly see that the jury have acted under some mistake or from some improper, motive; where there has been some mistrial' apparent to every impartial mind without labored examination; or where the jury have plainly departed from some rule of law, or made unwarranted deductions from the evidence.</p> <p>[Cited in Puller v. Fletcher, 6 Fed. 129.]</p>

<p>Case No. 6,896.</p> <p>Bankruptcy — Decease or a Partner Prior to Adjudication — Former Adjudication of One of the Partners — Imprisonment of Bankrupt —Petition Signed by Attorney.</p> <p>1. The decease of one partner prior to any adjudication upon the question of bankruptcy, is not legal cause for dismissing the petition.</p> <p>2. A firm may be declared bankrupts, although one of its members may have already been adjudicated on a creditor's petition.</p> <p>[See note at end of case.]</p> <p>3. Where it is proved that the bankrupt has been imprisoned but seven days exclusive of the first day, this of itself is not sufficient to support an adjudication of bankruptcy.</p> <p>4. For the purposes of petitioning, a partnership is to be held to subsist so long as there are outstanding debts against the firm or assets undistributed belonging to it.</p> <p>[See note at end of case.]</p> <p>5. If neither the petition nor the deposition of the act of bankruptcy are signed by the petitioner, the defect is fatal.</p> <p>[See note at end of case.]</p> <p>[NOTE. As long as there are undistributed partnership assets and partnership debts or liabilities, a firm may be adjudicated bankrupt In re Gorham, Case No. 5.624. The adjudication of a firm in one district does not prevent a subsequent adjudication in another district of a firm which is partly composed of the same persons. _ In re Jewett, Id. 7,306. A petition can be signed and verified by an attorney or agent. In re Raynor, Id. 11,597. The non-residence of his principal should, however, be directly alleged. In re Hadley, Id. 5,894.]</p>

After the decision of this cause [Case No. 6,898] an appeal was taken by the plaintiff [Clement S. Hunt] to the supreme court, and upon argument, the decree was reversed, and the cause sent back with liberty for the defendants [Louis Rousmanier’s administrators] to withdraw their demurrer and to answer the bill. 8 Wheat. [21 U. S.] 174.

Leave having been granted to amend the bill under the intimation of the court at the last term, the plaintiff [Clement S. Hunt] now filed an amendment to the bill.

<p>Case No. 6,900.</p> <p>Bond op Surety— Effect of Judgment against Co-Obligor — Delay in Demanding Payment — Discharge of Surety.</p> <p>In debt on a joint and several .bond given for duties, it is no objection in a several action against one of the obligors, that a co-obligor has been taken in execution on a judgment on the same bond, and discharged under the act of congress of June 6, 1798, c. 66 [4 Folwell’s Laws, 121; 1 Stat. 661, c. 49]. A surety upon a bond is not discharged by a mere delay to demand payment aftei it becomes due, unaccom.panied by fraud or an express agreement with the principal to allow the delay. And quaere how far such delay by agreement is a, good bar in favor of a surety at law. Quaere, also, if a party can, as to the obligee, aver himself a surety, unless his character appear on the face of the bond.</p> <p>[Cited in Locke v. Postmaster General’. Case No. 8,441; U. S. v. Sturges, Id. 16,414; Bank of Mt. Pleasant v. Sprigg, Id. 891; Hagood v. Blythe. 37 Fed. 250.] .</p> <p>[Cited in Townsend v.- Riddle, 2 N. H. 449, 451, 452; Davis v. Huggins, 3 N. H. 231; Grafton Bank v. Kent, 4 N. H. 223; Curan v. Colbert, 3 Ga. 239; Bank of Steubenville v. Carrol, 5 Ohio, 215; Cope v. Smith, 8 Serg. & R. 112; Hunt v. Bridgham. 19 Mass. 584; Baker v. Briggs, 25 Mass. 125.]</p> <p>See, also, as to the first point, Comth v. Boyn-ton, 4 Dali. [4 U. S.] 282.</p>

This action is brought upon a judgment rendered by the circuit court Of Caldwell county, Missouri, in favor of the plaintiff [James F. Hunt] against the defendant [Samuel B. Woodward]. Among other defences set up in the answer, is, “that the defendant had no notice of the pendency of the suit; that he was not served with a summons; that he did not enter his appearance therein, and that the court had no jurisdiction over him.” To this defence a general replication is filed.

<p>Case No. 6,902.</p> <p>Bankruptcy — Application—Demand for Jury Trial.</p> <p>A demand for a trial by jury, where an application for the benefit of the bankrupt law [of 1841 (5 Stat. 440)], is dismissed, must be made at the term in which the decision is made.</p>

This was a libel on a bottomry bond given by Leavitt, acting as master of the brig Hunter, for advances made for repairing her and fitting her for sea. The material facts are, that in May, 1829, Houdlette, the claimant, purchased the brig at Gustavia, in the Island of St. Barts. At the time of the purchase, she was in a condition requiring considerable repairs. Before he had left the place he engaged some work to be done upon her, and procured some materials.

[In bankruptcy. In the matter of Mrs. M. C. Hunter.] To Hon. E. S. Hammond, Judge of Said Court: Xour petitioner respectfully represents that he was elected assignee of the above estate, just prior to the yellow fever. The assets, consisting of millinery, did not come into his hands until the fourteenth day of August, when there was no sale for them; the same have been boxed and stored for several months.

<p>Case No. 6,906.</p> <p>Cargo — Surrender to War Vessel — Compensation.</p> <p>Compensation due for money surrendered to. prevent the capture or burning of a vessel and her cargo.</p>

<p>Case No. 6,906.</p> <p>Rents op Mortgaged Property.</p> <p>1. In Indiana the mortgagor of property, being entitled to possession, is entitled to the rents, and if he become a bankrupt his assignee succeeds to the right for the benefit of his unsecured creditors.</p> <p>2. When mortgaged premises are insufficient to pay a mortgage debt, the mortgagee would be entitled to an order applying the rents to the payment of his debt, but if he makes no demand for the rents, and takes no steps to have the same applied to his debt, the mortgagor can hold them.</p> <p>[Cited in Teal v. Walker, 111 U. S. 251, 4 Sup. Ct. 425.]</p>

<p>Case No 6,907.</p> <p>Bilí, op Exchange — Acceptor—Presumption op Ownership.</p> <p>The acceptor of a bill, which came into his possession after it had been put in circulation, is presumed to be the owner of the bill, and entitled to recover its proceeds from the drawer.</p>

This was a bill in chancery, filed May 22, 1842. It averred, that David Hunter, whose heirs the complainant [William Hunter] represented, was on the 30th of October. 1801, seized of a farm in the town of Marlboro’, containing about two hundred and sixty acres.

<p>[At law. Suit by Hunter . & Tilley against the Royal Canadian Insurance Company.]</p>

<p>Case No. 6,911.</p> <p>Taxation — Railroad Exemption — Void Tax Assessment — Railroads, How Taxed — Separate Assessments — Tax Deed Prima Facie Evidence op Title — Injunction a Proper Remedy.</p> <p>1. The Central Pacific Railroad is not exempt ■from taxation by the state of. California, on the ground that it is an instrumentality created in pursuance of acts of congress, and employed by the national government for transportation of the mails, armies of the United States, munitions of war, etc.</p> <p>2. An assessment of a tax not made in the mode or on the principle prescribed by the statute. is void.</p> <p>[Cited in Tilton v. Oregon Cent. Military Road Co., Case No. 14,055.]</p> <p>3. Under the statute of California, a railroad must be taxed as real estate, and the portion situate in each county must be assessed in said county as so much land, like the adjoining lands, without reference to its connections, or the uses to which it is put and must be assessed at its “cash value,” which is “the amount at which the property would be appraised, if taken in payment of a just debt due from a solvent debtor.”</p> <p>4. The land and improvements thereon, must be assessed separately like other real estate, and an assessment not made in the mode and on the principle stated, is void.</p> <p>5. Under the statute of California, a tax deed is prima facie evidence of the regularity of all proceedings resulting in the deed, and is, therefore, prima facie evidence of title in the grantor. Such a deed executed in pursuance of a void sale, casts a cloud upon the title.</p> <p>[Cited in Minturn v. Smith, Case No. 9,647.]</p> <p>[Cited in Arrington v. Liscom, 34 Cal. 366.]</p> <p>6. A court of equity will enjoin a sale for taxes, when the assessment is void, and the deed given in pursuance of the sale would cast a cloud upon the owner’s title.</p> <p>[Cited in Northern Pac. R. Co. v. Carland, 5 Mont. 146, 3 Pac. 134; Hauswirth v. Sullivan, 6 Mont. 203, 9 Pac. 798.]</p> <p>[7. Cited in Donohoe v. Mariposa L. & M. Co., Case No. 3,989, to the point that the dismissal of the original bill before a hearing would doubtless carry the cross bill with it as a part of the suit.]</p>

<p>Case No. 6,912.</p> <p>Salvage — Competency op Witnesses — What is Salvage Sebvice — Compensation.</p> <p>[1. A vessel rescued by a British naval vessel. and sent home in charge of an officer, was libeled for salvage; the officer suing for himself, and the British consul joining with him ■“for all other interests.” Held, that while it •would have been more regular to set forth the ¡names of the other parties interested, or otherwise designate them in the caption, the defect was merely formal, being adequately supplied "by the body of the libel.]</p> <p>[2. A British naval vessel encountered, on the ¡northwest coast of Africa, an American brig flying a signal of distress. The brig’s captain was dead, and her mate dying of coast fever; ¡and her crew, being ignorant of navigation, and worn out with fatigue and anxiety, were sailing at random along the coast. An officer was put on board, and the brig conducted to Fernando Po, where medical attention, water, and supplies were furnished by the British vessel. The brig, after being disinfected, was sent home in •charge of an officer, with two additional seamen. In spite of the disinfection, the officer was attacked by the fever, and, after much danger and suffering, reached the United States broken in health. Edd, that the service was in the nature of a salvage service, and entitled to an award of one-fourth the value of the vessel and cargo.]</p> <p>[3. Where a libel is filed to recover for services which are highly meritorious in their character. a party claiming to be a salvor will be permitted to testify in his own behalf, without •determining, by technical refinements, whether the service was strictly a salvage service or ■not.]</p> <p>[See The Elizabeth and Jane. Case No. 4,-356; The Boston. Id. 1,673; The Henry Bwbank, Id. 6,376.]</p> <p>[On appeal to the circuit court the decree of the district court was modified, as respects the amount of salvage awarded. See Case No. 11,971.]</p>

This was a libel against the bark Huntress, for damages occasioned by a collision with the bark Roscius owned by the libel-lant and others. Tne libel alleged that the collision occurred by the carelessness and mismanagement of the Huntress, and through no fault of the Roscius.

This was a libel In personam against the owners of the steamboat Huntress, for the loss of a box of goods shipped by the libel-lant at Boston, to be delivered to him at Portland. The Huntress was regularly employed in running between Boston and Portland, for the transportation of passengers and goods. The libellant shipped on board of her at Boston, on the 30th of June, three boxes to be carried to Portland, and at the same time he took passage in the boat himself.

<p>Case Ho. 6,915.</p> <p>Collision — Speed—Confusion of Lights— ' Steamf.h and Sailing Vessel.</p> <p>1. A steamer saw, over her port bow, the ■green light of a sailing vessel. She kept on. .not slackening her speed, until she saw, for an instant, a red light on the sailing vessel, and then, in immediate apprehension of collision, she ported her helm, without slackening her speed. The mate in charge, in obvious alarm, left his post to call the captain, and, on his return, the green light of the vessel was again in view, and án order to starboard was given. A collision ensued: Held, that the steamer was in fault, in not slackening her speed and stopping and reversing.</p> <p>[Cited in The Jay Gould, 19 Fed. 769.]</p> <p>2. The sailing vessel was also held in fault, in presenting a confusion of lights to the steamer. from want of proper screens, or from the lights not being in proper position, or from other cause.</p>

[This was a libel for salvage by Ross C. Davis and others, owners of the steamer Nina, ¿nd ,by the Phoenix Fire Engine Company and others, against the steamship Huntsville and cargo.]

This libel is filed by [Joseph L. Hurd and others], the owners of the propeller Falcon, against the respondents [Nathan lteeve and others], ás owners of the schooner C. Eeeve, to recover the damage occasioned to the former by a collision between the two vessels, which happened on Lake Erie on the night of Dec. 2, 1854.

Assumpsit on a policy of insurance, dated the 1st of September, 1836, whereby Z. Cook, Jr. for Elisha D. Hurlbert & Co., for whom it may concern, payable to E. D. Hurlbert & Co. caused to be insured, lost • or not lost, 83,000 on the schooner Flora, at sea or in port, for twelve months from the 15th day of September, 1836, at noon, and if at sea. on the expiration of the year, to continue at pro rata premium, until her arrival at her port of destination against the usual…

<p>Case No. 6,918.</p> <p>Practice at Law — Continuance—Motion,</p> <p>A motion made at one term but not decided at that term, nor continued to the next one, the court will order a continuance nunc pro tunc, but will not require the other party to take up the motion at the term. He had a right to suppose, that as the motion was not continued, it had been abandoned.</p>

<p>Case No. 6,919a.</p> <p>Collision — Steamer and Sailing Vessel.</p> <p>[A steamboat coming down the East river at night made her turn on the Brooklyn side, and was passing across to her berth on the New York side, when she collided with a sloop running free, close to the New York shore. She knew the maneuver the steamer was making, and by luffing, as directed from the steamer, could have kept clear when too late for the steamer to avoid the collision. The steamer kept a good lookout, and took all the precaution possible. Held, that the sloop was alone in fault.]</p>

In equity. Bill By [James Hurley] the as-signee in bankruptcy of Martin N. Feeny, to set aside a mortgage given by the bankrupt to the respondent [Peter Smith] as a fraudulent preference under the bankrupt act. The respondent answered, denying that he had reasonable cause to believe that the bankrupt was insolvent when the mortgage was given, and averred that the same was made in good faith and without fraud. Proofs were take.

Action [by Nicholas Hurry against the assignees of Samuel Hurry and G. W. Lawers-willer] for money had and received.

Assumpsit on an agreement in writing. James Bacon, one of the defendants, having pleaded bankruptcy, the plaintiff [Hurliki’s administrator] demurred generally. THE COURT overruled the demurrer. offered Bacon as a witness. THE COURT admitted him to be sworn, upon executing a release of all right to a surplus and commission, &c.

[Appeal from the district court of the United States for the district of Pennsylvania.] This ship was owned, one-third by White-sides, who was also master, and the other two-thirds by Samuel Hurry. The former, previous to his first voyage to England, was authorized, by letter of attorney from Samuel Hurry, to borrow money on his account, and to secure it by a bottomry bond on the vessel.

Mr. Ingersoll moved, on behalf of Timothy-Hurst, to be discharged from, arrest under a capias ad .satisfaciendum that issued against him from the supreme court of Pennsylvania, executed on him whilst he was attending this court as a suitor and witness.

[In review of the action of the district court of the United States for the Eastern district of Michigan.] [In bankruptcy. In the matter of James T. Hurst.] This was a proceeding under the bankrupt act between debtor and creditor, to compromise the former’s indebtedness.

The title of [Timothy Hurst], the lessor of the plaintiff, was as follows:— 4th March, 16S1. The grant of the government and soil of Pennsylvania, was made by Charles II. to William Penn, the first William Penn, married his first wife in 1672, and had three children, Springett, William; and Laetitia, who married Aubrey. His first wife died in 1090, and afterwards he married again, and had John, Thomas, Richard, Dennis; and Hannah who married Mr. Frame.

Hurst was convicted by the Morgan county circuit court of having murdered one Thomas Staples, a captain in the Confederate army. He was sentenced for fifteen years in the state penitentiary, where he had already served ten months when this application was made. The proof was that at the time the act was committed, February 2, 1S65, Hurst was a member of Capt. D. Beaty’s company, which was recognized as belonging to the United States army.

This was a motion made to try the question, whether Mr. Gibson was entitled to the attorney’s fees in the ejectments — [see Cases Nos. 6927 and 6936] — 80 or 100 in number-brought by the lessor of Hurst, against a number of persons in the Northern Liberties; or whether Ingersoll and Rawle. are not entitled to share those fees with him.

This cause being marked- for trial, Inger-soll moved for a continuance, on the ground, that a bill in equity had been filed by his client, the defendant, in the circuit court, for the New York district, calling for a discovery and account, in relation to the matters in controversy in the present suit; but that the plaintiff here had refused to file an answer to the bill, in consequence of which, an attachment had issued against him.

This was a rule, obtained by the executors of Brownjohn, and other creditors of Charles Hurst, upon the marshal, to bring into court the money levied upon an execution of Timothy Hurst against Charles Hurst, to be disposed of among the applicants according to the priority of their judgments.

The plaintiff [Charles Hurst] filed his bill praying relief against the award of arbitration, which had been approved by this court [Case No. 0,930], after exceptions had been taken to it; and upon a scire facias issued thereon, judgment had been obtained. [Id. 6,931]. The bill states that against the sum of 13,085 dollars, 17 cents, awarded to the defendant [Timothy Hurst], the referees had not allowed the following credits.

In this action of ejectment [which had formerly been continued on account of the non-payment of costs of tlie former action,— Case No. 0,933], the descent of one Frances Smith, through whom the plaintiff claimed, came into question; and to prove the descent, Lewis offered in evidence the deposition of one Morris, regularly taken in 1787.

This ejectment, and many others, were returned to April term, 1803, and were then put to issue, the defendants agreeing to enter into the common rule.

<p>Ejectment for one undivided fourth part of 5,000 acres of land in Chester county. [A similar suit was brought in Case No. 6,927, and a motion for attorneys’ fees was passed upon in Case No. 6,928.] The plaintiff’s title was as follows: — September 4th and 5th, 1682, William Penn, the first proprietor, by deeds of lease and release, conveyed to Sir John Fagg 50,000 acres of land, to be thereafter located in Pennsylvania, to him, his heirs and assigns; in trust, as to one-half thereof, to the use of his son William Penn; and as to the other, to his daughter,. Laetitia Aubrey; both children of his first marriage. This deed not produced, being lost, but sufficiently proved, as the plaintiff [Hurst’s lessee] insisted, by recitals in subsequent deeds. Some years after this, but when does not appear, five thousand acres, part of the above fifty thousand acres, were surveyed in Chester county', without saying for whom, but endorsed “Wm. Penn’s Manor.” This is the land in question. In 1716, William, the second, died intestate, leaving Springett. his eldest son, William. Gulielma. and Maria, who aft-erwards married Mr. Fell. By the intestate law of Pennsylvania at that time, the eldest son took one-half, and the second son and the daughters, one-fourth each. 24th January. 1730, Springett. by will, devised his half to his brother, William, the third, who thereby became entitled to three-fourths of his father’s estate. 10th February. 1740, a warrant issued to re-survey William Penn, Jun.’s. Manor; which was done, June. 1741, and found to contain five thousand acres, endorsed “Wm. Penn’s Manor.” This was accompanied with a list of the settlers on this manor, amongst, which is found the name of William Porter. Mr. Fell died intestate, leaving three children, Robert Edward. Mary M., who afterwards married John Baron, and Gulielma Maria Frances, who married Mr. Neweum, Mr. and Mrs. Baron, in February, 1768, conveyed their interest to Crispin, who re-conveyed to John Baron in fee. In 1770, Robert Edward Fell and Mrs. Neweum, by their attorney, and in consideration of £4,500, conveyed to Timothy Hurst all their lots and lands in South street in Philadelphia, and all other their lands in Pennsylvania, and elsewhere in North America. 15th January, 1774, Timothy conveyed to Charles, Thomas, and John Hurst, in fee, as tenants in common, all his lands in America. 2d December, 1785. Charles Hurst, as attorney in fact, under a power from Thomas and John, and in his own right, conveyed all the above lands to Clement Biddle; and the next day, received a re-conveyance of the same; and on the 8th September, 1791, Charles Hurst and John Baron conveyed to the lessor of the plaintiff, a British subject.</p> <p>Defendant’s title; 4th May, 1742, William Penn, the third, who was only entitled, under the law of Pennsylvania, to three-fourths of the five thousand acres, reciting the deed to Sir John Pagg, (ut supra) conveyed the whole of Penn’s Manor to John White, in fee. In this deed, he styles himself heir at law of William Penn, the second; and covenants that he has a right to convey, &c. 12th December, 1747, a patent was granted for these five thousand acres of land, to John White, by the then proprietors, Thomas and John Penn. 12th February, 1753, White, by attorney, conveyed 298% acres, part of Penn’s Manor, to William Porter, in fee; who, by will, dated 26th May, 1781, devised the same to the defendant.</p> <p>The Attorney General (Mr. M’Kean,) moved to nonsuit the plaintiff, on the ground that the deed to Sir John Pagg conveyed to him the legal estate, and that the estate of William Penn, the- second, and Laetitia, was a mere trust, not executed by the statute; and of course, that the plaintiff, if he be entitled, must assert his right in a court of equity. The plaintiff cannot, against the express words of the various recitals, from which alone the deed to Sir John Pagg is established, say, that this was not a trust estate, when those recitals declare the contrary. It is clearly to be inferred, that the conveyance was not only to Sir John Pagg, his heirs and assigns, but the usual words added, “to his only use and behoof, in trust.” &c.; in which case, the statute would only execute the first use in Fagg. The lease to Pagg, which was no doubt by bargain and sale, most certainly passed only a use to him; and if a second use had been declared, the statute would not have executed the second use. The release, then, only enlarged that estate to an estate in fee, without changing its nature; and therefore, only the first use to Pagg and his heirs was executed by the statute, leaving the second use a mere trust estate. Cases cited by Edward Tilgh-man. and Mr. Kawle, who supported the motion: 1 Eq. Cas. Abr. 383; Doug. 709 ; 2 Bl. Comm. 335, 33G, 339; 2 Wood. El. Jur. 301, 296.</p> <p>Lewis & Ingersoll, against the motion: The plaintiff may recover either on the warrant and survey, which, by the decisions of the Pennsylvania courts, and by that of the supreme court of the United States, are determined to give a legal right of entry, which is sufficient in ejectment; or under the deed to Sir John Fagg, which conveyed a use to the children of William Penn, executed by the statute. The general scope of the statute was to execute all uses and trusts; for both are mentioned; and those which were not considered to be executed, were exceptions made by construction, by the subsequent decisions of the courts of law and equity. Those were terms for years, double uses, and cases where it was necessary for the trustee to retain the possession, to enable him to execute the trusts. If this case comes within either exception, the defendant must show it. The conveyance by lease and release to A, to the use of B, to the use of C, passes but one use. Cases cited: 2 Bl. Comm. 332, 335, 336, Christian’s note; 2 Wood. El. Jur. 29C, 297, 294.</p> <p>The answer to the title set up under the warrant and survey, was, that this doctrine only applied where they formed the inception of title; aliter of another estate, as in this case, had been created prior to the survey.</p>

<p>Case No. 6,939.</p> <p>I'ankruptoy — Practice upon Review.</p> <p>1. The approved. practice in this circuit is, to-review in the circuit court by petition, and not by bill, an order made by the district court, in bankruptcy, in the exercise of the summary jurisdiction of the district court.</p> <p>2. The circuit court has, however, jurisdiction to review such an order, on a bill filed in the-circuit court, in a plenary suit, for the purpose, in the absence of any rule of the circuit court to the contrary. But a review in such manner-is not favored.</p> <p>3. G. proceeded by summary petition, in the-district court, against the assignee of H., a bankrupt, to have appropriated to the payment of a claim, property in the hands of the assignee-■which'the petition averred was not the property of the bankrupt, • but was the property of R., and was in the possession of the bankrupt as security for his endorsements of notes for the accommodation of R., a judgment on one of which notes constituted such claim of G.: Held, that such proceeding should not have been brought in the district court by a summary petition, but by a plenary suit, under section 2 of the bankruptcy act [of 1867 (14 Stat. 518)].</p> <p>.4. As the petition in the district court showed that the property was in the hands of the bankrupt for his indemnity against all the notes so endorsed by him, the aggregate of which outstanding was more than the proceeds of the property, it was not proper for the district court to summarily order that the judgment of G. be paid.</p> <p>5. The fact that G., in recovering judgment against the bankrupt, levied an execution on the property as the property of the bankrupt, commented on, as being inconsistent with the claim set up in the petition in the district court.</p>

<p>Case No. 6,938.</p> <p>Execution aqaisst Real Estate — Notice op Sale.</p> <p>Quere, whether under the act of the assembly of Pennsylvania of 1705, relative to the sale of lands taken in execution, personal notice of the time and place of the sale should not be given by the sheriff.</p>

When this cause was callpd for trial, the plaintiff [lessee of Hurst and Carr] moved to put it off, because a statement had appeared in a newspaper, since the trial of the case of Hurst v. Durnell [Case No. 6,927], in which-a short account of the evidence, of the points made by the counsel, and of the charge of the court, was given; and, in which it was mentioned, that that was one, out of about eighty causes, depending for property in the-Northern Liberties.

This was an action on two policies; one on the Monongahela Parmer, and the other on her cargo, from New-York to Gibraltar; the former a valued, and the latter an open policy.

This was a case agreed. The insurance was made on the freight of the same vessel, the Monongahela Farmer, (valued at 3,000 dollars;) on which a policy was effected, and the case tried last term.2 The evidence was-the same. It appeared in this case, as in that, that the supra-cargo was prevented from carrying the cargo from Algesiras, without security not to carry it to a British port; which security he could not give.

<p>[This was a libel for freight by Jacob Hus against Oscar Kempf.]</p>

<p>Case No. 6,945.</p> <p>Bankruptcy — Exemption—Growing Crops.</p> <p>1. Growing crops are exempted to a bankrupt by Rev. St. U. S. § 5045, as exempt from execution by Rev. St. Me. 1871, c. 81, $ 59, ns “produce of a farm until harvested.”</p> <p>2. An adjudication in bankruptcy operates to convey the title of a farm to the assignee, as a voluntary deed would do containing a reservation of the crop until harvested.</p> <p>3. A bankrupt may elect to occupy his farm and cultivate the crops until harvested; but lie must secure to the assignee a reasonable rental meantime.</p>

<p>Case No. 6,944.</p> <p>Freight — Interest—Bills on London.</p> <p>On a bill of lading stipulating that the freight shall be paid in New York, “at the current rate of exchange for banker’s sight bills on London,” the amount of the freight being expressed in English money, the amount payable is not to be calculated in gold, but in currency at the current rate for bids on London; and to this is to be added interest at the New York rate from the time when the freight is payable.</p>

This was a bill in equity, filed to restrain the defendants [Christopher C. Bradley and others] from infringing letters patent [No. ■0,227] for an “improvement in reaping machines,” granted to Obed Hussey, August 7, 1847, reissued April 14, 1857, in three divisions, numbered 449. 450, and 451. Reissue 400 was reissued June 21, 1859, in two divisions, numbered 742 and 743. Reissue 743 was reissued February 2S, I860, and numbered 917.

In this case, which was a suit in equity, for the infringement of letters patent [No. 5,227], the plaintiff [Eunice B. Hussey, ad-ministratrix of, etc., of Obed Hussey, deceased], having obtained a decree on final hearing [Case No. 6,946], embraced in her bill of costs the following items, which were objected to by the defendants [Christopher C. Bradley and others], on taxation: (1.) Expenses of plaintiff in attending court at Albany, in October, 1862, when the hearing of…

This was a libel brought by an officer of the whale ship Rambler against the owners, to recover his share of the proceeds which had come to their hands. The ship sailed from Nantucket in October, 1851. and prosecuted the enterprise until November, 1854, during which time she had taken eight hundred barrels of sperm oil. In that month she went into the port of Honolulu, whence she sent home to the owners the eight hundred barrels.

This was a bill in equity, filed to restrain the defendants from infringing letters patent [No. 5,227], granted to complainant, August 7, 1847, for “improvements in reaping machines,” which letters patent were surrendered, and three several patents, numbered 449, 450,' and 451, were re-issued April 14, 1857, for distinct and separate parts of the thing originally patented. The defendants were charged with infringement of reissue No. 449.

[Appeal from the d'strict court of the United States for the Southern district of Georgia.] On October 25,1S73, the libelant [George W. Hussey] shipped on board the steamship Saragossa, at Baltimore, to be carried to Savannah, a gray gelding, a trotting horse, known as Nick King. The horse was delivered to the stevedore, on the wharf, and slung on board by means of the sling and rope and tackle usually employed for such purpose.

In equity. This was a motion to dissolve •a provisional injunction, granted by Mr. Justice McLean, while sitting at chambers in Cleveland, to restrain defendants [William N. Whitely, Jerome Fassler, and Oliver S. Kelly] from infringing letters patent [No. 5,227] for an “improvement in reaping machines” issued to Obed Hussey, August 7, 1847, and reissued April 14, 1S57, in three ■divisions [Nos. 449, 450, and 451].

<p>In bankruptcy.</p>

The questions which arose in this case were certified to the judge by the register upon his certificate, under section 6, and upon the following agreed statement of facts: The bankrupts,2 by their mortgage dated 24 February, 1871, and duly recorded, conveyed to the Muzzy Iron Works of Bangor, several parcels of land situate in Bradley, in said district.

This case came before the court upon an adjourned question in bankruptcy from the district court of Rhode Island, upon a petition by Theodore Hutchins to have George W. Taylor and Benjamin F. Taylor deereed-bankrupts.

On the 10th day of October, 1867, W. F. Hutchinson and R. L. Hutchinson purchased of John B. Bell, a tract of land in Orange county, Virginia, containing 408 acres, and gave their bonds for the deferred payments of purchase-money to the amount in total of $4600, of which one of the bonds, for $866.-66%, became due on the 1st day of January, 1870, and was not paid. The interest was to be paid annually.

This was an action for a marine tort, brought by a seaman against the master for a wrongful discharge, before the termination of the voyage.

[Appeal by Christopher Meyer from the decision of the commissioner of patents, awarding priority of invention to Hiram Hutchinson for improved pattern rollers, in the application of India rubber to cloths by means of embossed rollers.]

This was a libel for an assault and battery, by a seaman against the master and mate. The facts in the case, as well as the grounds taken by the counsel, in the argument, are fully stated in the opinion of the court.

<p>[In bankruptcy. In the matter of Solomon Hutto.)</p>

This was an action [by Benjamin H. Hutton, survivor] against [Augustus Schell) the collector of the port of New York, to recover back duties paid under protest, and which were alleged by the plaintiffs to have been illegally exacted by the defendant, on sundry importations of goods from Europe. It now came up for a second trial, having been once tried in December, 1866.

[This was an action by Benjamin N. Hutton, surviving partner, against Augustus Schell, to recover an excess of duties exacted by defendant as collector of the port of New York. A similar action for duties assessed upon the cost of inland freight and commissions was tried in Case No. 6,961.]

This is an action on the case by the surviving trustee, for the creditors of one Bur-tie, to recover the amount of a bill of exchange, dated the 20th of July 1814, drawn by Elbert on Baring & Co. of London, for £894 sterling, in favour of Burkle, which he deposited with the defendant to remit and collect.

<p>Case No. 6,964.</p> <p>Execution op Contract — Conditional Delivery.</p> <p>L., as agent for the owners of a steam-tug, conferred with T., in reference to a charter of the tug by T. and others. The terms of the employment were agreed upon between them. L. had insisted that security should be given for the payment of the charter money, and, T. having proposed one Lewis as surety, L. and T. met at his office, where the charters were drawn up in duplicate and signed, Lewis signing as witness, and each took his part of the charter. When L. saw that Lewis had signed only as witness, he objected, and declared that the affair should go no farther, and that-the boat should not leave the port till security was given. The boat had already gone to Ho-boken to take in coal for the voyage, but the security not being given, she went no farther, and T. and his associates filed a libel against the boat to recover damages for the refusal of the owners to perform the charter: Held, that, on the facts, the charter was not completely executed, and that the action could not be maintained.</p>

[This was a suit by Charles H. Hyde, as-signee, against Abraham Cohen and others, for the recovery of certain shares of stock.]

<p>Case No. 6,968.</p> <p>Insolvency — Failure to Apply for Benefit of Bankrupt Act.</p> <p>Wilson v. City Bank of St. Paul [17 Wall. (84 U. S.) 473] examined, and Iteld not to cover á case where a debtor who is utterly insolvent, and with no reasonable prospect of being able to pay his debts, fails to apply for the benefit of the bankrupt act [of 1867 (14 Stat. 517)], but passively permits certain creditors to appropriate all his assets to their debts. ‘ Such a case is not that “honest struggle to meet their debts and to avoid the breaking up of all their business,” referred to by the supreme court.</p>

<p>Case No. 6,969.</p> <p>Corporations — Certificate.</p> <p>Where certain persons formed a corporation under the act of April 11, 1862 (St. Cal. 1862, c. 187, p. 1991, and without transacting any business re-incorporated themselves under the act of 1853, under which last incorporation all their business was done: Held, that the validity of those acts must he determined by the provisions of the act of 1803, notwithstanding that the first corporation was not formally disincor-porated. The filing of the duplicate certificate with the secretary of state is not essential to the legal existence of a corporation, except as between it and the state.</p> <p>[NOTE. A bill was subsequently filed by the defendant praying for a payment to him by the said assignee in bankruptcy of certain notes, with interest. A demurrer setting forth the statute of limitations according to the act of March 2. 1867 (14 Stat. 578), was sustained by the circuit court, and, upon appeal by the complainant, the decree was affirmed by the supreme court, opinion by Mr. Justice Blatch-ford. 114 ü. S. 247, 5 Sup. Ct. 841.]</p>

Action was brought to recover a certain sum of money, charged to have been collected from John Hutchins, by defendant for plaintiffs [Albert G. Hyde and others]. Plea, general issue. The case was tried by the court by stipulation.

<p>Case No. 6,971.</p> <p>Equity Practice — Ejectment—Injunction— Parties.</p> <p>1. By statute, an action of ejectment, in Michigan, must be brought against the tenant in possession. If no one be in possession, suit must be brought against any one exercising acts of ownership over the premises, or who claims title thereto.</p> <p>2. A bill being filed by complainant, represented that he had purchased and paid for the land, and prayed that a title might be decreed, and for an injunction, etc. It was objected that the name of Hyde, the complainant, is not known in the proceedings at law. The court required the tenant in possession, to be named as co-complainant.</p>

The affidavit to continue the cause stated that the defendant had receipts for money paid to the plaintiff, which were necessary, material, and competent evidence for his de-fence; that he has used his reasonable endeavors to procure the same, but finds they have become mislaid; and though he has searched among his papers with diligence, without success, he believes by the next court he will be able to ascertain where they are and to produce them, and that they would…

This suit was commenced in one of the •courts of the state, and, on entering its appearance therein, the defendant made application for its removal, under section 12 ■of the judiciary act, to this court; and an order for the removal was accordingly made. The present is the next term of this court after the removal.

<p>Case No. 6,974.</p> <p>Bankrupt — Fraudulent Conveyance bt.</p> <p>Judgment in favor of the assignee for the value of property conveyed to an alleged creditor of the bankrupt, notwithstanding that the conveyance was made more than six months before the commencement of the proceedings in bankruptcy, it appearing that the conveyance was fraudulent and intended to cheat and hinder creditors.</p>

<p>Case No. 6,975.</p> <p>1. Where under the articles of association of a board of stock brokers, a member cannot transfer his seat to a party not elected, and approved by the board; and where upon the insolvency of a member, his rights as such are forfeited, and the board is authorized to dispose of his seat, and apply the proceeds to the payment of his indebtedness to other members of the board, to the exclusion of all others, only the residue of the proceeds of the sale after paying all the liabilities provided for in said articles of association, is assets of such insolvent member. •</p> <p>[Cited in Bear v. Heasley (Mich.) 57 N. W. 280.)</p> <p>2. Under such articles, F., a member, failed to meet his engagements in the board August 24, 1872, and being indebted in a large amount to sundry members, on that day assigned his seat in the board to W., with authority to sell and pay the proceeds to his various creditors in the board. With the assent of the board, W. sold the seat to T., who was elected by the board, for ten thousand dollars, and, with the approval of the board, paid the entire proceeds pro ratably to F.’s creditors, who were co-members. October 1st. 1S72. F. was adjudged a bankrupt on petition of a general creditor, filed September 18, 1872. After said sale and payment, an assignee having been appointed, he brought suit against W. to recover said sum of ten thousand dollars: Ecld. that the assignee was only entitled to the residue after payment of F.’s liabilities to the co-members provided for in the articles of association, and there being no surplus, he was not entitled to recover.</p> <p>[NOTE. The plaintiff took the case to the supreme court on writ of error, where, in an opinion by Mr. Justice Miller, the decision of the lower court was affirmed. 94 U. S. 523. It was held, following the principle laid down in Nichols v. Eaton, 9l TJ. S. 716, that membership in the board was not a matter of absolute sale. Although it is property, yet it is. when purchased, qualified and incumbered by the conditions of article 15 and others, which conditions the creators of it had a right to impose, and a compliance with which is necessary to obtain it.]</p>

[This was an action at law by Hylton’s lessee against Brown.] A rule was obtained at the October term, in 1803, to set aside the nonsuit entered in this cause; and the question now came on to be argued.

Previous to the jury being called to try this cause, the defendant read a notice to the plaintiff’s counsel, to produce, at the trial, the will of Joseph Griswold, who, by deed, had leased the land in question to the plaintiff [the lessee of Hylton]; also, an affidavit, to prove that the original will was in the plaintiff’s possession, by his own acknowledgment.

This cause, which was tried at the adjourned court, in January [Case No. 6,981], and in which a venire de novo was awarded, came on now to be tried again. The evidence was the same as at the former trial. The defendant, having stated and shown his possession and title, called for the produetion of the will of Joseph Griswold, after proving a notice to the plaintiff to produce it, and also that it was in his possession.

. Action to recover mesne profits, from the time of the ouster, laid in the declaration, to the time when possession was delivered under the habere facias possessionem, in 1806. The defendant gave evidence of improvements made on the land by the defendant, prior to the time of the demise laid, and of others subsequent to that period. Proof was given by the plaintiff of the value of the rents.

<p>Case No. 6,984.</p> <p>Examination op Bankrupt — Power op Register.</p> <p>The proceedings before a register, in bankruptcy cases, are under the control of the register, and should proceed without unreasonable delay. No inflexible rule can be laid down as to postponements or adjournments.</p>

<p>Case No. 6,985.</p> <p>Bankruptcy — Resolution op Composition— What Provisions are Binding.</p> <p>1. A provision of a resolution of composition to the effect that upon the delivery of the composition notes all the property in the hands of a voluntary assignee of the bankrupts shall be delivered to them and the assignee discharged from responsibility is wholly nugatory so far as it purports to affect the assignee’s responsibility, or the rights of creditors under the assignment, otherwise than as the confirmation of the composition and release of the creditor’s claims by payment of the composition may necessarily affect them.</p> <p>2. Confirmation of the resolution of composition does not give the assent of the court to what such provision vainly attempts to affect.</p> <p>3. Confirmation of a resolution containing a provision that the proceedings in bankruptcy may be discontinued at any time after delivery of the notes does not bind the court to allow such discontinuance, unless sufficient grounds therefor are shown to exist when the application is made.</p>

<p>[In bankruptcy. In the matter of Jacob Hymes.]</p>

[This was a libel in admiralty by James E. McDowell and others against Walter Donaldson and others for freight and demurrage.]

[This was a ibill in equity by Thomas Hyslop, assignee in bankruptcy of Ely Hop-poek, against Ely Hoppock, Caroline Hop-pock, and Erastus S. Brown, praying that certain conveyances made by the bankrupt be set aside as fraudulent, and that plaintiff be appointed receiver.]

[This was a bill in equity by Thomas Hy-slop, assignee in bankruptcy of Ely Hoppock, against Ely Hoppock and his wife, to set aside certain conveyances as fraudulent. Service upon the defendants not having been secured by reason of their absence from the jurisdiction, the plaintiff now asks for an order directing defendants to appear and answer, the order to be served by publication or otherwise, or that an order be made for service upon the son of defendants.]

<p>Case No. 6,990.</p> <p>Negotiable Instrument — Notice to Indorser— How to be Given.</p> <p>1. A personal notice of the demand and refusal or payment of a note, to charge the in-dorser, may be served at any place. And if it be proved that it was given at one place or another, it is sufficient</p> <p>[Cited in Terbell v. Jones, 15 Wis. 256.]</p> <p>2. Where the indorser lives in the city, the notice must be served on him personally, or at his place of business or residence.</p> <p>[Cited in Manchester Bank v. Fellows, 28 N. H. 310.3</p> <p>3. But a notice deposited in the post office, which was in fact received by defendant in due time, is sufficient.</p> <p>[Cited in Manchester Bank v.. Fellows, 28 N. H. 311; Cabot Bank v. Warner, 92 Mass. (10 Allen) 524.]</p> <p>4. An averment in the declaration that the note when due was presented to the bank for payment, to wit, 23d of July, 1841, — the words from, to wit, &c., were held to be surplusage.</p>

[This was a libel by William G. I-, master of the schooner I. W. Coffin, against the steam-tug I. M. Lewis, and the bark Aline, for damages resulting from collision.]

<p>Case No. 6,992.</p> <p>Fishermen — Lien por Wages — Shipping Contract.</p> <p>1. Fishermen who ship for a fishing voyage •under a written contract, have a lien on the vessel for six months after the service is ended, and the fish sold for the value of their shares, which may be enforced by process in admiralty.</p> <p>2. Bat the statute makes no provision for fishermen who ship without a written agreement, but leaves them to the rights which their contract by law gives them.</p> <p>3.The act of 1700 [1 Stat. 131]. which allows to seamen shipped without a written contract the highest rate of wages, does not apply to fishing voyages.</p> <p>[Cited in The Grace Darling, Case No. 5,651.]</p>

<p>This was a motion, grounded on affidavit, to compel the production and delivery to the clerk of the court, of certain papers alleged to be material on a trial at law of this action. The existence of the papers and their materiality, were not denied. But the motion was resisted on the ground that the party moving had already filed a bill of discovery, covering many of the facts of the case, and, among others, these documents; and though copies of them had not been annexed to the answer, yet their contents were described; and it was urged that, having resorted to this mode of discovery, the party must read the answer, and could not have the benefit of the order under the act of congress.</p>

This was an action on the case brought by Messrs [Joseph] Iasigi and Goddard, of Boston, against Mr. James Brown, of New York, the senior member of the firm of Brown, Bro’s and Co.,… Held: that Iasigi said Brown was a friend of Thompson, and he had himself heavy dealings with him, and wished witness to write to the defendant and ask him about the standing of Thompson and his property; that witness accordingly wrote the following letter to Mr. Brown: “Boston, April 5, 1851.

<p>[This was a libel in rem by John T. Lowe and others against the ship Iconiun for salvage.]</p>

<p>Case No. 6,996.</p> <p>Staving Proceedings —Intervention of Third Party — Vexatious Proceedings — Power of the Court.</p> <p>1. A quantity of cotton was shipped on board the steamship Idaho, bound for Liverpool, by M., who received a bill of lading therefor, in the ordinary form, dated May 4th, 1809. On the same day an action of replevin was commenced by P., against the master of the steamship, to recover the cotton as his property. In that action, the cotton was seized by the sheriff, and was by him nominally delivered to P., the plaintiff, but was not taken from the steamship, and, by agreement between P. and the •owners of the steamship, it was carried forward to Liverpool, and there delivered to the agent of P., who had agreed to indemnify the steamship against any liability by reason of such carriage and delivery to him. M. having assigned his bill of lading to H. & Co., a libel was filed in this court, on the 9th of June, 1S69, by them against the steamship, to recover the value of the cotton not delivered according to the bill of lading. On the 19th of June an action was commenced in the court of exchequer, in Liverpool, by F., the agent of H. & Co., against the owners of the steamship, to recover damages for the non-delivery of the cotton un•der the bill of lading. After the filing of the libel in this court, H. & Co. were made parties defendants in the replevin suit on their own application. The answer of the claimants, in the suit in this court, set up the title of P. to the ■cotton as a defense against the claim of H. & ■Co. In this position of affairs P. applied to this court, on petition, praying to be admitted to defend in this action, and that the libellants be required to litigate with him their title to the cotton, or, if they would not stipulate to do so, that their further proceedings in the suit, In the English exchequer, be enjoined. The owners of the steamship also applied for a stay of proceedings in this cause, unless the libel-lants should elect to stay proceedings in the two other actions, and to proceed herein. Held, that the interest of P. in this suit arose solely from his having agreed to indemnify the claimants against the result of the litigation; and that that circumstance was not sufficient to give him the right to intervene in the action.</p> <p>2. His application for a stay of proceedings in this action must be rejected for the reason that he was not a party to the suit, and did not pretend that there was any collusive use by the parties of the process of the court to deprive him of any substantial right.</p> <p>3. It is competent for a court of admiralty to stay proceedings, in any ease before it, to prevent injustice: no reason was apparent why the trouble and expense of the three litigations, each involving the title to the same property, should be cast upon the owners of the ship; and, on the application of the claimants, proceedings in this cause should, therefore, be stayed, unless the libellants should elect to stay proceedings in the other cases.</p> <p>[See note to Case No. O',60S.]</p>

<p>Case No. 6,997.</p> <p>Bill of Lading — Common Carrier — Fraud of Shipper — Mingling Goods — Despoiling Evidence.</p> <p>1. In April, 1869, at New Orleans, E. obtained a bona fide advance from W. J. P. & Co. on a bill of lading for 140 bales of cotton on the brig C. The cotton was not then on board the C. A few days afterwards, P. delivered it alongside of her, but before it was put on board, he removed it from her custody, and shipped it on the steamer L. for New York, with 25 other/ bales, taking one bill of lading for the whole, on which he got an advance from S. at New York, to whom he consigned the whole. The L. arrived at New York with the cotton, which was taken directly by S. to a warehouse, where S. caused the marks to be removed, and the bales re-marked with marks similar to marks on 35 other bales belonging to S., and the whole 200 were shipped in the steamship I. for Liverpool, the shipment being made in the name of third parties, who gave the receipts to M., a clerk of S., to whom a nominal sale had been effected. M. obtained from the I. a bill of lading for the cotton, and having made a nominal sale of the cotton to H. & Co., indorsed the bill of lading to J. P. & Co., of Liverpool, the agents of H. & Co. The steamship arrived at Liverpool, and delivered 35 of the bales to J. P. & Co., and delivered the other 165 to agents of W. J. P. & Co. H. & Co. filed a libel against the steamship, to recover for the failure to deliver the cotton as required by their bill of lading. Held, that, on the receipt of the 140 bales by the brig C.. they became the property of W. J. P. & Co., and that the libellants had no better title to them than S., who had no title as against W. J. P. & Co.</p> <p>[Cited in The Perreri, 9 Fed. 471.]</p> <p>2. The ship could prove this title of W. J. P. & Co., and a delivery to them of the cotton, as a defence against the claim of H. & Co.</p> <p>3. As S. & Co. had mingled 25 bales of cotton of their own, with the 140 belonging to W. J. P. & Co., so that they could not be distinguished. the whole 165 became the property of W. J. P. & Co.</p> <p>4. Everything is to be presumed against the despoiler of evidence.</p> <p>This case was affirmed by the circuit court on appeal [Case No. 6,99S, and 93 ü. S. 575).</p>

<p>Case No. 6,998.</p> <p>Delivery op Goods — Title of Shipper — Denial op ht Carrier — Confusion of Goods.</p> <p>1. M. shipped, at New York, on a steamship, for Liverpool. 200 bales of cotton, and received from the vessel a bill of lading therefor, which he endorsed to the libellant, who had purchased the cotton. At Liverpool, the vessel delivered 165 bales of the cotton to the agent of P., who claimed to own the cotton. As to 140 bales, it was shown that P. was the real owner of them. As to the remaining 25 bales, it was shown that the libellant, who originally owned such 25 bales, had intermixed and confused them with the 140 bales, in an effort to obliterate the original marks on the 140 bales, so as to prevent their identification by other persons claiming them, and it did not appear that the 140 bales could have been identified, at Liverpool, so as to be separated out of the 105 bales, and the bales were of different grades or qualities, and different values: Held, that the delivery of the 165 bales to the agent of P., at Liverpool, was proper, and that the libellant could not recover the value of any of them from the vessel.</p> <p>2. The rule that the carrier cannot dispute the title of the shipper of goods, is subject to two conceded exceptions — 1st, where the true owner has compelled a delivery to himself by judicial proceedings; 2d, where the shipper has obtained possession of the goods by fraud or felony, and they have been delivered by the carrier to the true owner. Moreover, the carrier may defend himself by proof of actual delivery of the-goods to the true owner, although without judicial compulsion. The true rule is, that the carrier cannot dispute the shipper’s title, while retaining the possession of the goods; but he may, if he have actually delivered them to the true owner.</p> <p>[See note at end of case.]</p> <p>3. The master of a vessel signed a bill of lading for 140 bales of cotton, as shipped on board. The bill was endorsed to P.. and he advanced money on the faith of it. No such cotton was on board of, or had been delivered to, the vessel, when the bill was signed. Seven days afterwards, the 140 bales were delivered on the wharf at which the vessel was lying, in the usual place of deposit for cargo to be taken on board, and were received by the mate of the vessel, on its behalf, and receipted for in the name of the vessel, by her proper officers, but were not put on hoard. Afterwards, and on the same day, the cotton was removed by the shipper: Held, that the cotton waB delivered to the vessel, and that P. became its owner, as against all persons whose rights did not accrue prior to the delivery of the cotton to the vessel.</p> <p>4. The rule stated, in respect to a confusion of goods.</p> <p>[See note at end of case.)</p> <p>[NOTE. The libellants then appealed to the supreme court, where the decree was affirmed in an opinion by Mr. Justice Strong, who said that actual delivery by the bailee on the demand of the true owner, who has the right to the immediate possession of the goods bailed, is a good defense to the claims of the bailor. This is not confined to the two exceptions mentioned by the circuit court. The owner of goods who willfully and wrongfully mixes them with those of another of a different value and quality, so as to render them undistinguishable, is not entitled to any part of the intermixture. 93 U. S. 575. See Case No. 6,996.]</p>

In admiralty. On the 15th of February, 1865, the schooner Ida L. Howard, of about one hundred and sixteen tons burden, owned in Portland, and bound on a voyage thence to Philadelphia, with a cargo consisting chiefly of barley in bulk, attempted to make the harbor of Boston to avoid an impending storm. At about eleven o’clock at night, while holding her course, as her master supposed, towards the harbor, she struck on what are known as the “Egg Rocks,” near Boston light.

<p>Case No. 7,000.</p> <p>Delivery op Cargo — Bill op Lading — Notice to Consignee — Fire.</p> <p>1. A barque brought to New York from Savannah one hundred bales of cotton, under a bill ■of lading which excepted “the dangers of the tseas and fire.” The consignees filed a libel against her, alleging that she had delivered ■only eighty bales in good order, and about the •quantity of seven more damaged by fire, and seeking to recover damages for the failure to deliver the whole in good order. The vessel arrived in New York on the 12th of October, 1865. The fire occurred on the dock on the ■20th of October, about 11 a. m. A notice was published in a newspaper on the 13th of October, that the vessel would begin to discharge cargo that day. The consignees gave evidence •to show that they went to the vessel every day, for several days before the fire, to get their 'cotton, and were on each day told that it would not be discharged on that day. On the part of the vessel evidence was given to show that all of the cotton which was delivered in good order, was discharged and taken away by the consignees before the fire: Held, that the evidence showed that part of the cotton was received and taken away by the consignees on •the 17th or 18th of October.</p> <p>2. Therefore, the consignees had notice to attend and receive the rest of the cotton as fast ■as it should be discharged.</p> <p>3. Such of the cotton as came out on the day of the fire was separated on the pier so that it could have been readily taken away, and there was time to have taken it away before the fire.</p> <p>4. There had been such a delivery of the cotton as to relieve the vessel from responsibility.</p>

In equity. The complainant, in the fall of 3S63, applied to John W. Lathrop, the local agent of the defendant at Jacksonville, Ill., for insurance to the amount of one thousand dollars, for the term of three years, upon his dwelling house in Morgan county. The agent, who was personally familiar with the property proposed to be insured, offered to insure it for that period for the sum of $13.50.

[Appeal from the district court of the United States for the Southern district of New York.] This was a libel in rem, filed in the district court, by the owners of the schooner Statesman, against the steamer Illinois, to recover damages for a collision which occurred between the two vessels, about a quarter or half past eight o’clock p. m., on the ISth of August, 1863, in the Chesapeake Bay, at the mouth of the Potomac river, a little to the northward and eastward of the…

This was a motion by William Dixon, master of the propeller Illinois, to ojien a decree obtained by default, and for leave to answer. A libel for collision was filed against the propeller, September 3d, 185,1. The propeller was seized, and the usual stipulation given, to answer judgment, on the 15th of the same mouth.

The libel was in personam against the respondent as owner of “the barge Illinois, her boats,” etc., for supplies. There was no other or further description of the vessel set up in the libel than that quoted. The grounds of demurrer were: 1.

<p>The Memphis and Vicksburg Packet Company was duly incorporated under the laws of Tennessee, having its home office at Memphis. Three steamers belonged to it: The Illinois, the G. W. Cheek, and the A. J. White. They were duly enrolled in the custom-house in that city. The plan was (afterwards carried out) to run these vessels from Memphis to Vicksburg, making regular trips, also, to Helena and Napoleon, Ark., and stopping, as occasion required, at the different landings. The proof showed that the company had a large credit and had used it in the purchase of supplies, making repairs, etc., without any serious question on the part of creditors until the fall and winter of 1876-1877. The vessels were supposed to be worth between $50,000 and $60,000, at that time. Becoming somewhat pressed for money, certain creditors, especially one N. M. Jones, offered to aid the company, and advised the drawing up of a deed of trust, in his favor as trastee — being, as he then declared, of the opinion that he could so manage the vessels as to pay off the debts. Accordingly, on the 16th day of November, 1870, such a deed was made to him, as trustee, for the purpose of securing all creditors. He accepted the trust, and began the running of the boats, and so continued for about one month. The deed was registered in the office for registration of deeds in Shelby county and, also, in the custom-house. This not only embraced the boats, but other property not belonging to the steamers, such as office furniture, books and accounts due to the company, an iron safe, etc., etc. For years prior to the making of this deed money was borrowed, repairs made and supplies purchased under the direction of George W. Cheek, who was one of the principal owners of the boats and superintendent of affairs. The owners lived in Memphis, where the general business was transacted. Prior to the deed of trust to Jones, the M. & V. P. Co. had made a mortgage on the Illinois to secure J. C. Neely and Louis Hanauer, who, at Cheek's request, had indorsed the company’s note for $5,000, which they eventually had to pay.</p> <p>The facts seemed to point to Jones, trustee, etc., as the party who instigated the filing of the libels. The mate, the engineer of, and a seaman on, the G. W. Cheek, caused that vessel to be seized by process prayed for and duly issued on the 13th day of December, 1S76. A tug belonging to Brown and Jones brought the marshal alongside of this vessel, where the attachment was executed. Turner, one of the libellants just named, was paid off by Jones, trustee, within three hours after his libel was filed. He swore that Captain Darragh, one of the captains under Jones, requested him to swear it out and promised that he would be paid the amount of his claims, if he would do so. The deed provided that G. W. Cheek should be paid $50 per •week for his services, and if Jones did not pay off the debts by the 1st day of August, 1877, on the request of any creditor, it became his duty to sell off one or all the boats. Another ■ provision in the deed was, that Jones, “as said trustee, was to take charge of, manage and run said steamboats in the trades in which they are respectively engaged, so long as paying rates can be obtained, and the business in his judgment be made profitable, with full power and control of the same, and authority to repair, insure, and do other things necessary to preserve the value and efficiency of said boats, and also to employ officers, agents,” etc. On December 13, 1870, Karr-filed his libel in the district court against the A. J. White, following those of the engineer, mate and seaman. Monaghan filed a libel against the' G. W. Cheek, on the 21st day of December, 1S76; Karr, against the Illinois, on the 13th day of December, 1S7G, and at same time and within a few days thereafter the other libels (intervening) were filed. Jones (the trustee), as surviving partner of Brown & Jones, filed his several libels against each of the vessels, on the 20th day of December, 1876, claiming, as did other libellants, the right to proceed against the vessels under the maritime and state laws to enforce liens for supplies and materials furnished, and setting forth particularly his separate claims, such as occurred within three months prior to the filing of the same, under the provisions of the state law. There was no allegation in the libels that the company, at the time of 'furnishing supplies, was in such an unsatisfactory condition, financially, as that no prudent man would give it credit, nor that the boats required credit. Some of them did allege that credit was given to said boats by saying that the items were charged to them. There was no allegation in any of the cases of a special contract made with the master or owners of the boats that supplies were to be charged to them, by reason of the fact the furnisher or furnishers of such supplies were unwilling to give credit to the company. Nor did any of the libels allege that there was a necessity for credit to be given to the boats. One of the libellants alleged that Cheek said he should charge, in one particular case, the bill to one of the boats, naming it; while to another he said he should so charge the supplies furnished in that case, because C. wanted to keep the accounts of each boat separate. The .company had abundant credit. In fact, there was no evidence introduced to show that it had been refused that at any time. Karr, one of the original libellants, in giving his testimony, stated that he always charged' supplies to the boat. In answer to the question, whether, when the parties purchasing lived in Memphis and were responsible, he was in the habit of looking to the owners of the boat for pay, he said he had never, in. any instance, given credit to the owner instead of the boat. He, as all other libellants, seemed to go upon the idea in all cases that, whether the owners were responsible or not, all they had to do was to charge the goods, to the boats; and all the articles furnished were so charged in each case, according to the books and accounts which were brought forward, without any reference whatever to the solvency or insolvency of the owners. The lien of the state was declared on in Karr’s and other libels, as follows (the same form as adopted by many others): “Libel-hints further allege and propound that, by the statute laws of the state of Tennessee,. they have a positive, express and declared lien on the said steamer, for all supplies, materials, articles, repairs that appear from the said accounts — herewith filed — to have been furnished said steamboat within the period of ninety days of filing of these libels. which they hereby specifically state and charge,’.’ etc. Two of Karr's amended libels. were filed March 14. 1S77; another February 20, 1S77. The only charges of insolvency were made in his amended libels. They did not allege that as an existing fact at the time credit was given, nor was there any proof in the-record to that effect.</p> <p>Jones, the trustee, on the 21st day of December, 1S70, presented his petition in the district court, praying for an immediate sale of said vessels already libelled, in which, among other things, he stated that he was “willing to yield up his trust, so far as he is concerned, if necessary to the purposes of this court, but not to affect or prejudice the rights or claims of any of the creditors here, in, and he reserves his title to said property, if necessary, under said trust, to sustain the-same, and claims possession.” He alleged that it was necessary to the interests of all parties that the boats should at once be sold, as the business season was passing away rapidly. To this petition he filed, as an exhibit, the following paper (addressed to the ■district judge): “Your petitioners, the undersigned creditors of the steamboats A. J. White, Geo. W. Cheek, and Illinois, have carefully read and examined the petition of N. M. Jones, trustee, under the assignment •of the Vicksburg & Memphis Packet Co., heretofore made. We do hereby earnestly •advise that the said steamboats be immediately sold upon such terms and in such manner as the honorable court may decree correct and proper. The amounts opposite our names indicate and show the total sums of money due us from said steamboats. We are urged to invoke the immediate action of the •court in this particular, on account of the rapidly increasing charges and costs of keeping said boats. Experience shows that the longer such property is allowed to remain unused and idle the more the value of the same depreciates.” Reference was then made to the shortness of the business season, and In conclusion, they asked “that an immediate ■sale be made.” This paper was signed by Karr and several other persons and firms who had filed libels. The amount placed opposite Karr’s name was $11,147.57, and the •sum found following the name of each signer •of the paper, represented the amount due him, without reference to that by him stated in his libel, in which he endeavored to reach what had fallen due within the three months preceding the filing of the same. Karr, himself, in his own, did not claim above $2,500. The libels in the main were brought to enforce liens for supplies, repairs, etc. But there were several other classes of claims, which were sought to be enforced as liens. H. Luhrman and John Long claimed the Tight to proceed against the vessels by reason of the fact that they had leased and ■rented, for the term of one year, running from the 10th of June, 1870 to the 10th of June, 1877, * * * the bar privileges on the decks and cabins. Besides these, there were a number of libels filed by insurance companies, claiming liens on the boats for unpaid premiums. There were other claims on which libels were filed, called C. O. D. claims. Many goods were delivered by the steamers at landings on the river for the shippers, the understanding being that the boat taking them would collect the money on delivery thereof, and on its'return pay it over to the shipper; but this last-named agreement was not expressed in the bills of lading. Davis, a witness, who was clerk on one of the steamers, testified that, as a general rule, the boats charged per centage for collections, but in the particular case in which he testified, nothing was demanded for such service, as the shipper was a good customer. It was insisted that these were contracts of affreightment. The bar leases, it was alleged, were charter-parties.</p> <p>It was further urged by Neely and Han-auer, who intervened by petition, that they had a prior lien on one of the boats — the Illinois, by virtue of their mortgage, at least, as to all supplies furnished subsequent thereto. Several other petitions were filed by general creditors, claiming proceeds under 43d rule.</p> <p>The claimants by their answers denied that under the state or general admiralty law, any lien was given libellants for supplies, because the credits were not given to the boats in strict admiralty sense, nor was any necessity alleged or shown for such credits. Captain Darragh, one of Jones’ captains, purchased one of the boats, and the other two, claimants alleged, were bought in by parties acting in the interest of Jones, though there was little or no proof on this latter point. The vessels brought $22,900 at the sale. The claims proven amounted to $27,386.</p> <p>The United States district attorney intervened for the government, claiming liens for hospital dues; and there were claims also for wharfage. There was proof to show that the company, by Cheek, the superintendent, was in the habit of making notes to different persons furnishing supplies and repairs, for articles so furnished, and that the same had been so taken. The proof tended to show that the company was in the habit, now and then, of borrowing money out of bank, and that in good seasons the boats did a large and profitable business. During the season of 1876-1877 it was not good; the navigation of the river being interrupted by ice, was one of the reasons.</p> <p>On the 24th daj' of February, 1S77, without a trial of the questions, it was referred to a commissioner to take and state an account of the amounts due different parties, and to report not only what was due libel-lants, but the character of their claims, and also their priorities under the admiralty law. This report was made and filed February 4, 1878. The commissioner reported the sale of the boats under a former order, and the rank of priorities. He allowed. 1st, seamen’s wages (these had already been paid), the bar leases and hospital dues; 2d, C. O. D. claims; 3d, material men and supplies furnished in home port The fund was nearly exhausted after paying these, else (as stated by him) he would have allowed, as next claim, the mortgage of Neely & Han-auer, and afterwards the general creditors. To this report many exceptions were filed by different parties on various grounds. Judge TRIGG heard the argument on the exceptions in the spring of 1878, but after the lapse of nearly a year made no decision upon the matter. The questions in dispute were then brought before Judge HAMMOND. The state boat act is referred to and quoted word for word in the opinion of the court.</p> <p>that libellants stand before the court as supply and material men, seeking by a proceeding in rem in admiralty to enforce a lien, given by the statute law of Tennessee, for articles furnished and delivered in the home port to the steamboats libelled and seized within the ninety days prior to the filing of said libels. These supplies consisted of coal, ship stores, furniture, repairs and other articles needed on the three steamers, furnished upon a contract with the masters thereof. These were beyond doubt maritime contracts. See The Lottawanna, 21 Wall. [88 TJ. S.] 680-598, and The St Lawrence, 1 Black [66 U. S.] 522, that in all cases where the local law gives a lien courts of admiralty will enforce the lien upon the ship in rem. The Gen’l Smith, 4 Wheat [17 U. S.] 438; Pey-roux v. Howard, 7 Pet. [32 U. S.] 324; The Orleans v. Phoebus, 11 Pet. [36 U. S.] 175; The St Lawrence, 1 Black [66 U. S.) 522. Unquestionably, it is the local law that gives the right, and such right is administered according to that law. That was so under the former rule of 1844. Unless there be ambiguity or doubt, these liens will be so found; otherwise, according to the principles of maritime law. 2 Pars. Adm. 324, and cases cited in note; The Young Sam [Case No. IS, 186]; 1 Conk. Adm. 7-19, 201; Peyroux v. Howard, 7 Pet. [32 U. SJ 324; The St. Lawrence, 1 Black [66 U. S.] 522; The Lottawanna, 21 Wall. [88 U. S.] 579. And see Code Tenn. § 1991, which is very clear and does not admit of a doubtful construction. Proceeding under this statute, we have only to allege and prove that, under a contract with the master or owner of the vessel, the materials or articles were furnished for or toward the repairing, fitting, furnishing or equipping said vessels. The allegations and proof show that the articles were furnished and the repairs were done on the credit of the vessel. I insist that this, however, is not necessary in the case of material men enforcing a state lien against a vessel in her home port, for articles and repairs furnished and done in her home port. The only attempt at authority for such a position, is an obiter dictum in The Lottawanna, 21 Wall. [88 U. S.] 579 et seq. The new 12th rule does not require that it shall be alleged and proved that credit was given to the boat, nor does it require that we should allege and prove that the owners were insolvent, and the supplies and repairs were necessary. Unless it should appear that supplies were enormous in amount and the repairs unreasonable, the presumption of law is that those things, which appear to be furnished to a vessel under that head, are necessary, and the burden of proof rests on the claimants to show otherwise. It nowhere appears in any way, shape or form, that Brown and Jones accepted the trust deed. This trust deed is void: First, by reserving on its face a benefit for the makers; second, it unreasonably prolongs the time of sale, as against the rights of parties secured by express statute. Being void, there could be no legally binding acceptance under said trust deed by any one — not even by Jones. Burrill, Assignm. 255-257, 345, 346. In the absence of proof that the general creditors accepted under the trust deed, the presumption is that a trust deed being for their benefit, they accept the terms of it and take their rights under it. But as to those libellants, who furnished supplies, materials and repairs within the ninety days prior to the date of the deed, it was against their interest, and a positive injury, for they were a favored class of creditors under the state law. The presumption arises in their favor that they did not accept.</p> <p>(Mr. Warinner, who argued all the questions elaborately, though requested so to do, failed to furnish the reporter with a brief, and no others were handed to the reporter, except the ones mentioned herein.)</p> <p>Mr. Vance dwelt particularly upon the effect of the trust deed taken by Jones. He said: Jones not only received a delivery of the deed but acted under it for a month. He never declared an abandonment of the trust but had a sale of the boats made under it by the court, and only declared that, if necessary, he would declare an abandonment of the trust. He never, to this day, filed a deed to the property to any one. In whom did the property in these steamboats vest by the conveyance in trust? In N. M. Jones. And the power was coupled with an interest which, in the language of our supreme court, is irrevocable. Wilburn v. Spofford, 4 Sneed, 699. Could the estate divest by his mere unwillingness to act? The law says that he could not rid himself of the trust he had assumed without the consent of the cestuis que trust and the decree of a court. Jones v. Stockett, 2 Bland, 409; Cruger v. Halliday, 11 Paige, 314; Breedlove v. Stump, 3 Yerg. 257; 4 Yes. 100; 1 Atk. 18; 1 Jac. & W. 689. In Maxwell v. Finnie, 6 Cold. 434, our supreme court decide that, in a proceeding to remove a trustee, all the parties interested must be made parties to it, the debtor, as well as the creditor and trustee. And so particular are the courts as to the appointment of new trustees, that, in Watkins v. Specht, 7 Cold. 595, the court held that a •court could not appoint one, where the original trustee died; the heirs of the dead .trustee not being made parties to the proceeding. Evidently, the provisions of our Code show that a trustee can neither resign his trust nor be removed, without the interposition of a court.</p> <p>If the position which counsel assume is correct — that material men have a lien irrespective of any other consideration, by virtue of the state statute giving a lien (conceding for the sake of argument that it does give such a lien) then a state lien is higher than a maritime lien in a home port. Yet how anomalous this would be, for the courts decide that liens of material men,, claiming under the general maritime law, are to be preferred over — what are by some called— quasi maritime liens under slate statutes. The John T. Moore [Case No. 7,430]. To state the proposition is to refute it. 2 Counsel ask of what benefit is it for them to go Into the admiralty court, if the law is as I contend. The answer is easy. A sale of the vessel under the state law gives no good title; besides, it is necessary to apply by petition to the circuit judge to obtain permission to have an attachment to issue, which he will only grant upon good cause shown. This of itself involves delay, whereas in the admiralty all that has to be done is to draw a libel, give security, and the process issues. And this is what Judge Bradley means when he speaks of “obstructions and embarrassments” arising under the state liens. The Lottawanna, 21 Wall. [88 U. S.] 579. The new 12th rule gives its own meaning in clear language. No intention is manifested to put home and foreign ports in the same rank. Nor to make liens, enforceable in home ports, equal to admiralty liens, but simply to provide that, as in a foreign port a libel may be filed if according to the rules of the maritime law, the same thing may be done in the home port when conformable to admiralty rules. No other change was intended. The presumption of credit was not altered, nor the necessity for the same. Need it be said that it' congress was by act now to place home and foreign liens on a basis of equal rank, that the rules of the admiralty as to credit and necessity for credit would still apply? Congress may regulate liens, the supreme court may provide rules, but the general admiralty law is and will continue to be part and parcel of any system that may be adopted. Liens will never be given where no necessity for credit exists. These libellants had a right under the state law to seize these boats— no one questions that; but they give credit only to the owners in such cases and not to the boats. See case of Waggoner v. St. John, 3 South. Law Rev. No. 4, 10 Heisk. 503, where Judge Freeman puts his decision on the ground that the state proceeding is not inrem, but against the owners of the boat, citing The Hiñe v. Trevor, 4 Wall. [71 U. S.] 556; The Moses Taylor, Id. 424; and The Belfast, 7 Wall. [74 U. S.] 624; and showing wherein our statute differs from other state acts which recognize proceedings in rem under state statutes. According to our statute in state practice, after judgment had against the owner, an execution issues against his property, and can be levied upon the boat attached, or anything else the owner has. See 10 Heisk. 503. In the admiralty such liens, as we have already said, cannot be enforced unless the credit is given to the boat, and not to the owner. The rule' is, whether there is a lien capable of being enforced or not, the owner is always bound, but the ship is a distinct person and cannot be bound at all, unless credit is given to that, and not to the owners. Taylor v. Commonwealth [Case Ni>. 13,787], per Miller, J. This same judge (same case) gives the test of credit. He says: “That is determined by the intention of the party at the time of giving it.” Acting upon this rule, and referring to the libels and proof, it will be readily perceived that none of the articles furnished were upon the credit of the boats in the admiralty sense. For many of these notes were taken, while in others there is no allegation of credit being given to the vessel, and certainly no proof. The allegations of credit, when made, rest simply upon the fact as to how the charges were made upon the books. Lions are discouraged, and are, in no case acquired, by material men, when the owners are present, unless the former are insolvent, or the credit necessarily is given to the vessel. [Pratt v. Reed] 19 How, [60 L’. S.] 359; [People’s Ferry Co. v. Beers] 20 How. [01 IT. S.] 393; [Roach v. Chapman] 22 How. [03 LT. S.] 129; [Beaubien v. Beau-bieu] 23 How. [04 U. S.] 193; and Taylor v. Commonwealth, [Case No. 13,788], It would seem that these principles are too well settled to admit of argument. If it were shown that the Mem. & Vicksburg Packet Co. was insolvent at the time the supplies were furnished and was refused credit, or was in such financial difficulties that no prudent man would credit it, such fact would go far towards making out a case against the vessels. But no grounds like these are alleged in any of the libels, unless the exception be in the amended ones of Karr, filed February 2G and March 14, 1877, which declare that the company was insolvent at the time the supplies were furnished; but they do not allege this as a ground for necessity of credit. It was clearly an after thought, and the ninety days had already barred nearly all the items of the account. Neither was there proof that such insolvency existed, nor of any necessity for credit at that time. Credit must be given to the boat before the lien attaches. And this ought to be the law for the plainest reasons. If it were otherwise, unscrupulous creditors could make out and present unjust bills, and if not settled upon the spot, threaten the boat with a libel; or becoming offended with the owners for some petty difference, such as a transfer of their custom to another house, or for some other interested motive, would have it in their power just at the moment of sailing, to seriously embarrass the movements of a vessel. More'than that — if some shrewd person should ingratiate himself into the confidence of a few larger creditors, he might compel an assignment at almost any time, as that would be deemed better by the owners than to be libelled at an inauspicious moment with ruin staring them in the face. I contend that this state gives at least only a doubtful lien. And this court, not the state court, is to construe that lien. In this particular case, in the absence of other reasons, it becomes necessary. Judge Turley declared in 5 Sneed, 391, that the proceeding contemplated by the statute is against the boat, * * * it is required to be against the owners of the boat * * * but not for the purpose of enforcing satisfaction of the debt by a judgment against them personally. A state cannot execute a process in rem by proceeding against the boat as a boat, for that contravenes the doctrine in The Hiñe v. Trevor, The Belfast, and The Moses Taylor [supra]. Judge Freeman’s construction of this statute has already been given, the opposite of that of Judge Turley. According to the former ruling the statute would, in effect, amount to concurrent jurisdiction with the admiralty court, while in the latter the proceeding would be a mode of simply bringing the owner into the state court for the purpose of compelling him to give security for his debt It will be seen that it would be •unsafe for the admiralty in causes of this kind to accept the construction of the supreme court of the state. Having exclusive jurisdiction it has the exclusive right to construe this class of statutes, and should not abandon that prerogative. It is to fix the limits of state action with reference to its own jurisdiction, and not for the highest court of the state to do that for itself. While this court will follow the interpretation of a local statute given by the supremo court of a state, it never follows such laws, or the construction of laws in a state as interferes with its own jurisdiction or with the general law. And this applies to cases in common law, equity and admiralty equally. See [Chicago v. Bobbins] 2 Black [(¡7 U. S.] 418; [Williamson v. Berry] 8 How. [49 II. S.] 495; [Swift v. Tyson] 1G Pet. [41 L\ S.] 1; [Carpenter v. Providence Washington Ins. Co.] Id. 495; [Miller v. Austen] 13 How. [54 TJ. S.] 218; [Foxcroft v. Mallett] 4 How. [45 TJ. S.] 358; Watson v. Tarpley, 18 How. [59 U. S.] 517; Sandford v. Portsmouth [Case No. 12,-315]. The construction of an old English statute by a state court does not bind this court. Construction of the statute of limitations by the highest court of a state does bind, but where the statute of 21 Jac. 1, c. 6, is only partially altered, the construction of the statute by the state court as to the altered parts binds, but not as to the general terms of the statute. This court is bound only by constructions of state courts as to local laws, but not by constructions of laws or statutes which are in general acceptation. Clearly, therefore, the construction of a state court as to the words “fitting,” “furnishing,” and “equipping,” when applied to boats, does not bind this court, for these are words that peculiarly and exclusively pertain to commerce and navigation.</p> <p>Now it is not insisted here that the state can give the statutory lien upon any other than a maritime contract. The first part of the statute, fixing a lien upon “building,” etc., does not figure here. The contention is, what do the words immediately following mean? “Materials or other articles furnished, for or towards the repairing, fitting, furnishing or equipping such boat.” It includes evidently such materials or articles as are used in furnishing, fitting, or equipping the boat at the beginning of its career, and afterwards such materials as are used in repairing it. See Koach v. Chapman, 22 How. [03 TJ. S.] 129 (and Edwards v. Elliott, 21 Wall. [8S TJ. S.] 532). where it is ruled that furnishing an engine — or fitting the boat with an engine — was not a maritime contract. Materials towards fitting, furnishing or equipping a boat are clearly not maritime contracts, for these relate exclusively towards finishing the boat. They are simply land contracts. If the libels. founded on the statute, are good for anything, only those which are for repairs and material therefor fall within the favored class. “Equip.” when applied to a ship, means to dress it, to furnish it with a complete lot of articles necessary to it. qua ship. “Furnish,” is in this connection, to fit up, to equip. “Fit,” refers in nautical language to furnishing a ship with men and necessary tackle, equipage, etc. In certain cases “furnish” may mean more; not so here. But to settle this matter beyond dispute — -the caption to the act of 1833, carried into the Code (section 1991), is as follows: “An act for the benefit of mechanics.” If it is still the law that the caption of an act is a part of it —if that is the key to unlock and disclose the intent of the legislature — then it is plain that only builders and repairers and materials for repairs were to be favored. The original act is repeated almost word for word in section 1991. That reads as follows: “Whenever a debt shall be contracted by the master, owner, agent or consignee of any steam or keel boat, within this state, by and on account of any work done, or materials or articles furnished for, or towards the building, repairing, fitting, furnishing, or equipping such steam or keel boat, shall be a lien,” etc., — the rest of the section precisely as in section 1991. The word “consignee” is left out, but the sense, idea, and intention are the same as in the original act. When we look at the Tennessee act we see that there is no intention to establish a lien in favor of maritime contracts, nor a lien of a maritime nature, but its object is simply and solely to secure any one who might perform work on a boat and furnish materials or articles towards building, repairing, fitting, furnishing or equipping any keel or steam boat, or for supplies or wages due to hands. The legislature did not intend to give these parties any priorities over common law liens, as is clearly manifested by the eighth section of the act. Here is in fact a distinct announcement that such a provision or lien does not possess the characteristics of a maritime or quasi-maritime lien. And it would be difficult to enforce such a lien against boats under the new 12th rule, it falling in that class of state liens which could with great difficulty be enforced, and, perhaps, not at all, in some cases, in the admiralty.</p> <p>The bar leases are in no sense maritime contracts. They are not charter-parties, no particular part of the ship being specified; nor are they contracts of affreightment, because such are made to take goods on at a certain place to be delivered at a certain other place. They have no necessary connection with commerce or navigation. Besides these leases were assigned, and the lien is personal. See 14 Am. Law T., April, 1877; Morris v. McCulloch [83 Pa. St. 34]; Patchin v. The A. D. Patchin [Case No. 10,794]; Rep-pert v. Robinson [Id. 11,703]; Sturtevant v. The George Nieliolaus [Id. 13,578]; Logan v. The Aeolian [Id. S,465]; Rusk v. The Freestone [Id. 12,143]; Pearsons v. Tincker, 36 Me. 384-380; 23 Me. 282; 40 N. H. 511; 5 Eng. (Ark.) 411. There are only two cases looking the other way: The Boston [Case No. 1,669] and The General Jackson [Id. 5,-314]; but very peculiar circumstances surrounded them.</p> <p>The conclusion is reached that there are no liens — neither maritime nor state — that can be enforced here by the libels, and therefore they should be dismissed with costs. If, however, the court should think the giving of credit to the vessels was not necessary in order to charge the vessels — still the state lien does not cover more than the repairs— say $1,500. Unpaid premiums of insurance are not, upon principle, liens, but if it shall be thought proper to follow the ruling in The Dolphin [Cases Nos. 3,973, 3,974], — approved with a reservation to hereafter differ, — by Judge Swayne, there would be a charge on the registry of $1,500 more. The- C. O. D. claims are not liens. They somewhat resemble contracts falling within the express business, but lack certain constituents. Perhaps they may be more properly classed under the head of banking or collecting — certainly, they are not purely maritime, or necessarily connected with commerce or navigation. Under the authority of Kemp v. Coughtry,3 11 Johns. 107, the owners would be clearly liable at common law, but not so the ship. Had the master signed a bill of lading covenanting to return the money when collected, there is no doubt the vessel would have been bound because this would have been within his authority, but not so as to collecting ‘the money. He had no authority for that to bind the ship. He entered into no agreement to do-either the one or the other.</p> <p>The claim of Neely and Hanauer is a legal' lien. They have come in by petition under the 43d rule, claiming proceeds in the registry to the amount of $5,000, which arose-from sale of the Illinois. They are entitled to that sum, and the claimants willingly agree that it shall be paid. This with the two other claims, if allowed as liens, will' swell the amount to be taken out of the registry to $8.000.</p> <p>I have not gone into the question of priority between mortgagees and material men, because I do not think the latter here have any lien. The authorities are conflicting, but the weight seems to be in favor of the material men. The Norfolk [Case No. 10,-297]; The Skylark [Id. 12.928]; The St. Joseph [Id. 12,229], denying The Grace Greenwood [Id. 5,652]; Francis v. The Harrison [Id. 5.038]; The Circassian [Id. 2,721], But While they have priority over a lien under the state laws, it does not relate back so as to give that priority. See The St. Joseph [supra]; The Paragon [Case No. 10,708]; Marsh v. The Minnie [Id. 9,117]; 27 Ohio, 350; Scott’s Case [Case No. 12,517]; The G. C. Morris [Id. 5,204]; and see The Mary [Id. 9,186]. There are other cases to the same point. This is no court of bankruptcy or insolvency, and it is decided in The Lottawan-na, 20 Wall. [87 U. S.] 221, and The Edith, 94 U. S. 519, that .the proceeds arising from the sale, if unaffected by lien; become by operation of law the absolute property of the owner, citing Brown v. Lull [Case No. 2,018]; [Sheppard v. Taylor] 5 Pet. [30 U. S.] 675; Brown. & L. 87-91; Fitz v. The Amelie [Case No. 4,838]; [The Amelia] C Wall. [73 U. S.] 30. The admiralty court is invested with no jurisdiction to distribute such property of the owner any more than any other property belonging to him. Where there is an application under the 43d rule for remnants, and the owner does not oppose, such may be paid out — not otherwise.</p> <p>On a correct construction of the Tennessee statutes creating this lien, the priority between a mortgage and home claims for supplies, materials, etc., is determined by the order of time in which the registration of the mortgage and the creation of the home claims occurred. Claimants under the state lien were not intended by the legislature to have priority over common law liens, which is shown by the eighth section of the act, providing “that where there are prior liens on said boats by judgments obtained by the general creditors of the owners, it shall be the duty of the sheriff to attach such boat, subject to such prior liens, and only the surplus over such prior lien shall be paid into court for distribution.” The requirements of this section unmistakably show that the legislature did not intend to create a lien of the nature and character of a maritime lien, for here they expressly make the lien they are creating subject to a judgment lien of general creditors of the owners in a common law court. An express negation of this lien possessing the nature of a maritime lien is contained in the statute. The statutory lien is given by the same terms to builders, material men, and mariners (hands), and puts them all on the same footing, not preferring mariners’ wages as a court of admiralty, but compelling them to share pro rata with builders and all others entitled to the statutory lien. The lien given by the state statute is to be enforced in accord with the construction of the statute by a local law. The Lotta wanna, 21 Wall. [88 U. S.] 578; The Edith, 94 U. S. 51S.</p> <p>On preference between mortgagees and material men and waiver the following cases were referred to and discussed: Scott’s Case [Case No. 2,517]; Dudley v. The Superior [Id. 4,115]; The Grace Greenwood [Id. 5.G52]; The Skylark [Id. 12,928]; The Kate Hinchman [Id. 12,620]; The Alice Getty [Id. 193]; The St. Joseph [Id. 12,229]; 2 Pars. Shipp. & Adm. 152; The Nestor [Case No. 10,120]; [The Palmyra] 12 Wheat. [25 ü. S.] 611; 2 Hagg. 136; [Peyroux v. Howard] 7 Pet. [32 U. S.] 345; [The St. 'Lawrence] 1 Black [66 U. S.] 532; [Andrews v. Wall] 3 How. [44 U. S.] 573; Stapp v. The Swallow [Case No. 13,305]; 1 New. 186; 7 Heisk. 612; Id. 617; 2 Humph. 24S; 2 Head, 128; 3 Humph. 616; Mart. & X. 309 ; 9 Pa. St. 203.</p>

Motion to quash a writ of certiorari. The state of Illinois commenced in its own name by the attorney-general, in the circuit court of Sangamon county, a prosecution against the defendant [the Chicago & Alton Bail-road Company], a corporation chartered by the state, for violation of the act of legislature, of May 2, 1S73, entitled “An act to prevent extortion and unjust discrimination in the rates charged for the transportation of passengers and freights on railroads in this…

This cause is, at present, before the court on the motion of the complainant for the allowance of a temporary injunction, to prevent the erection by the elevator company, under an ordinance of the city of St. Louis, of a grain and package elevator upon a portion of the public wharf of the city.

The question now presented for decision arises upon the motion of Jacob Thompson et al., trustees under the first mortgage, and a portion of the bondholders under that mortgage, to have J. B. Alexander, the receiver heretofore appointed by this court, removed from said receivership, and the property held by him and covered by said mortgage delivered and turned over to said trustees, to be used and employed by them in payment of the debt secured by said mortgage, which motion…

<p>[This was a suit by the Illinois Masons’ Benevolent Society against Adaliza Booth and others, representatives of Moses K. Booth, deceased.]</p>